Politics & Policy

The Ruling that Wisconsin’s Right-to-Work Law Is Unconstitutional Will Not Survive Appeal.

(Alan Crosthwaite/Dreamstime)

We’ve seen this before in Wisconsin.

In 2011, Dane County circuit judge Maryann Sumi held that Act 10, Wisconsin’s historic reform of public-sector collective bargaining, had been enacted in violation of the state’s open-meetings law, and she ordered that it not go into effect. For a variety of reasons, it was clear from the get-go that this decision would not survive appeal. It did not. The Wisconsin supreme court reversed Judge Sumi by a vote of 4 to 0, with three justices wishing to defer a decision on procedural grounds.

In 2012, Dane County circuit judge Juan Colas held that Act 10, now in effect, was unconstitutional. Again, it was obvious from the start that this decision was fatally flawed and would not survive appeal. It didn’t. The Supreme Court reversed Judge Colas by a vote of 5 to 2.

On Friday, Dane County judge William Foust held that Wisconsin’s right-to-work law was unconstitutional. Once again, this ruling has little chance to survive on appeal.

Judge Foust held that right-to-work legislation “takes” the property of unions for a public purpose without just compensation, in violation of the Wisconsin’s constitution’s garden-variety prohibition of state confiscation of private property. His reasoning is as follows: Unions that choose to become exclusive bargaining agents for a group of workers must represent all of them — even those who do not want to be represented by the union. Because Wisconsin’s right-to-work law prohibits unions from compelling these workers to pay for what they do not want (but get anyway), they “take” the union’s “property” — its services — without just compensation.

#share#This decision is an outlier. Right-to-work laws have existed for almost 70 years. Although a trial judge in Gary, Ind., in a decision since reversed, thought that right-to-work legislation was somehow akin to slavery, no other court has held that they “take” a union’s property without compensation. The United States Supreme Court has said that unions do not have a constitutional right to require dues from non-members. Recently, both a divided panel of the Seventh Circuit Court of Appeals and the Indiana supreme court rejected this argument. Federal labor law — the very thing that gives unions the ability to become exclusive bargaining agents in the first place — expressly authorizes states to enact right-to-work laws.

RELATED: The Labor Story the Media Is Missing: Right-to-Work Laws Are Spreading

A “property interest” is something that is defined by applicable state and federal law. The “right” of unions to bargain collectively is, in fact, a privilege that is created by statute. And it is a valuable one. To become an exclusive bargaining agent forecloses competition. It imposes on employers a duty to bargain in good faith — a legal obligation to listen to and respond to the union’s demands — that would not otherwise exist.  In states that permit it, they can compel every worker in the bargaining unit to become “customers” — i.e., to accept and pay for the services that the union wishes to provide.

Right-to-work laws simply give unions a slightly worse deal. It protects the rights of workers to refuse to financially support an organization that they do not wish to support. If they are not confident that they can persuade enough workers that their services are worth paying for, unions are free to walk away. The refusal of a state to grant unions whatever particular set of privileges that they desire is not a “taking” of their property, any more than forbidding hospitals who accept Medicare payments from turning away patients with emergency medical conditions is a taking of theirs.

Righ-to-work laws have existed in this country for 70 years and are currently in effect in 26 states. A trial-court judge in Madison, Wis., has not “discovered” their unconstitutionality. Wisconsin’s right-to-work law will ultimately survive.

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