Invalidation of Wisconsin’s ‘Right to Work’ Law May Not Last

By Allen Smith, J.D. Apr 26, 2016

Established law about the legality of “right-to-work” statutes turned topsy-turvy earlier this month, when a Wisconsin circuit court determined that the state’s statute commits an unconstitutional taking of property.

Under right-to-work laws, which exist in slightly more than half of the nation’s states, employees who don’t belong to a union can decline to pay the union “fair-share fees,” even though the workers may benefit from costly collective bargaining, contract administration and grievance adjustment. (The fees are similar to dues, but exclude the cost of the union’s political activities.) The fees are intended to address the “free rider” problem of employees reaping the benefits of unions without paying for them.

The loss of income to the union through nonpayment of fair-share fees threatens a union’s economic viability, the court said in its April 8 decision. And the law that permits this nonpayment allows an unconstitutional taking of property.

The court acknowledged it was going down a solitary path. “Throughout the course of this case, the rallying cry of the state and amici [its friends] is that no right-to-work law has been struck down in any state where one has been enacted.”

But the court found the dissent in a similar right-to-work lawsuit in Indiana (Sweeney v. Pence) to be persuasive, quoting from Chief Judge of the 7th U.S. Circuit Court of Appeals Diane Wood, the dissenter in the Indiana decision. Wood criticized the majority for being “flatly inconsistent with the Supreme Court’s reasoning [in Commc’ns Workers of Am. v. Beck and Abood v. Detroit Bd. of Educ.] … that recognized the tangible value of the services that nonmembers and objectors receive as a result of the duty of fair representation.”

Success on Appeal Predicted

Some court observers predicted the Wisconsin court’s decision would not withstand an appeal.

“Over the past 70 years, 26 states have enacted right to work,” said Rick Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty, a nonprofit legal firm.

“I can’t tell you how many times the laws have been challenged,” he told SHRM Online. “They have all withstood court challenge. The ‘takings’ argument accepted here has never prevailed elsewhere.”

Esenberg noted that unions enjoy numerous privileges under the law, including:

  • The right to organize.
  • The right to be the exclusive representative.
  • The right to compel employers to bargain.
  • The right, in states that don’t have right-to-work laws, to compel workers to pay union fees.

“All right-to-work does is take away the last privilege,” he said. “The unions cannot compel workers to buy what they are selling.” He added, “It is not unusual for legal privileges to come with burdens. The Constitution does not require the state to impose only those burdens that the union likes. This case will be reversed.”

Scott Manley, senior vice president of government relations for Wisconsin Manufacturers and Commerce, said the “flawed arguments” in the court’s decision “have been rejected by state and federal courts across the country, and will be rejected again when judges who actually apply the law and uphold the Constitution have an opportunity to review the case.” Wisconsin Manufacturers and Commerce is the state chamber of commerce, the state manufacturers’ association and the state safety council.

This case is International Association of Machinists District 10 and Local Lodge 1061 v. State of Wisconsin, No. 2015-CV-000628 (Wis. Cir. Ct. 2016)​.


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