Experts: Right to work ruling likely to fall on appeal

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The legal fate of Wisconsin’s right-to-work law largely hinges on questions over whether labor unions are required to represent all employees at unionized companies, even those who don’t pay dues.

The Republicans who passed legislation in March 2015 making Wisconsin the country’s 25th right-to-work state argued that unions are in fact not obliged to represent non-dues-paying employees. For that reason, they contended, unions have no need to worry about so-called freeloaders because they can simply choose to not negotiate on the behalf of anyone who refuses to pay at least a “fair share” payment.

In striking down Wisconsin’s right-to-work law on Friday, Dane County Judge William Foust deemed such arguments “disingenuous.” He instead contended that unions were being unconstitutionally deprived of property if they had to provide representation in return for no compensation.

“If the union exists at all … and is chosen by a majority of the employees voting in a collective bargaining unit, then it must be the employees’ exclusive representative,” Foust wrote. “It cannot decline exclusive representative status unless it declines to be voted in at a workplace to begin with.”

Paul Secunda, a labor-law professor at Marquette University, said Monday that he agrees with Foust’s ruling but it’s unlikely to stand up on appeal. The main reason for his prediction is the current makeup of the state Supreme Court.

“Especially with the way the Wisconsin Supreme Court election went last week and with Justice Bradley Rebecca winning and reinforcing the 5-2 conservative majority, there’s no way in the world they are going to allow this ruling to stick,” Secunda said.

Secunda said he does not want to give the impression that the case will be decided merely for political reasons. He said there is a legal gray area surrounding right-to-work laws in this country.

Secunda said the National Labor Relations Act makes it clear that unions that are voted in to represent workers at a particular company cannot limit their services simply to those who agree to pay dues. At the same time, he acknowledged that the federal Taft-Hartley Act of 1947 gives states the ability to adopt right-to-work laws that ban contract clauses that make paying for a union’s upkeep a condition of employment at certain companies.

The trouble comes when unions argue that being forced to provide representation without just compensation deprives them of property — whether that be dues or simply payments meant to ensure workers are paying their “fair share.” Secunda said he thinks right to work violates unions’ constitutional rights but conceded the law is not entirely clear on that point.

Other courts — most prominently the 7th Circuit Court of Appeals in a decision handed down in 2014 — have found reason to uphold to right-to-work laws when presented arguments similar to those made by Foust in Dane County. Secunda said he thinks Wisconsin’s Supreme Court will oppose Foust’s ruling by citing reasoning similar to that used in the federal case.

“To be fair, they are not going to just making something up,” Secunda said.

Foust noted in Friday’s ruling no other state court had struck down a right-to-work law on the same grounds he was citing. But, he added, he is not obliged to follow other states.

When pushing for Wisconsin’s right-to-work law, Republican lawmakers had at one time considered including legal carve-outs that would have excluded certain construction unions. They eventually decided against taking such a step, though, because they wanted to adopt a law that would stand up to court challenges.

Various groups expressed confidence on Friday and over the weekend that Wisconsin’s right-to-work law would be upheld on appeal.

“Judge Foust’s argument for his ruling has been repeatedly rejected by state and federal courts throughout the nation,” said John Mielke, president of the Associated Builders and Contractors of Wisconsin, a group that represents mostly nonunion companies. “And I expect our state’s law to be similarly upheld upon appeal.”

Right to work aside, Dane County judges also tried — unsuccessfully — to overturn parts of Wisconsin’s Act 10 legislation, the 2011 law that all but eliminated most public employees’ collective-bargaining rights. Assembly Speaker Robin Vos, a Republican from Rochester, said Friday that he believes that Wisconsin’s right-to-work law will be similarly upheld on appeal.

“No one should be forced to join a union or pay union dues as a condition of employment,” Vos said in a statement. “I’m confident that this decision will be reversed in a higher court and worker freedom will prevail.”

The legal challenge of Wisconsin’s right-to-work law was brought by three unions — Machinists Local Lodge 1061 in Milwaukee, the Wisconsin AFL-CIO chapter and United Steelworkers District 2 in Menasha. Secunda said the plaintiffs were wise to file in state court because the precedent established in the 7th Circuit two years ago probably would have made it easy to dismiss the case in federal court.

Even though he thinks Foust’s ruling will prove unacceptable to the Wisconsin Supreme Court, Secunda said a serious challenge of right to work could be mounted if a federal appellate court other than the 7th Circuit were to rule against another state’s law. If the 4th Circuit Court of Appeals at some point were to overturn West Virginia’s recently passed right-to-work law, for instance, the U.S. Supreme Court would get a chance to weigh in.

“Then you would have a circuit split,” Secunda said. “Then the Supreme Court could decide once and for all if this amounts to an unconstitutional taking of property.”