Unions could face uphill battle in right-to-work court fight

Listen to this article

If history and precedent are any indication, unions stand little chance of having Wisconsin’s new right-to-work law overturned in court.

In Michigan and Indiana, opponents of the so-called right-to-work laws both states passed in 2012 have yet to prevail in legal challenges. Even those that had initial success in lower courts were ultimately rejected on repeal.

Proponents of Wisconsin’s right-to-work law argue they have no reason to expect a different outcome from a legal challenge filed in a state circuit court Tuesday. The Wisconsin State AFL-CIO, United Steelworkers District 2 and Machinists Local Lodge 1061 are calling on Dane County Judge William Foust to place a temporary injunction on the new law, which they allege violates the state constitution’s prohibition on taking property without providing just compensation. A hearing in the challenge has been scheduled for 9 a.m. March 19 in the Dane County Courthouse.

The unions argue that they have a property interest in contractual language that, before the adoption of right-to-work, had allowed them to collect dues even from nonunion members at so-called closed-shop companies.

State law obliges unions to represent all employees at those sorts of companies, regardless of whether those workers formally belong to a union. The groups suing Walker say they count on the income they receive from mandatory dues to pay for the required representation.

The same day the challenge was filed, supporters of Wisconsin’s right-to-work law were predicting it would fail.

“We are confident Wisconsin’s freedom-to-work law is constitutional and will be upheld as it has been in federal court,” Laurel Patrick, a spokeswoman for Walker, said in an email statement on Tuesday.

In the case of Indiana’s and Michigan’s right-to-work laws, rejection has been the end result of legal actions in both state and federal courts. The Indiana Supreme Court in November and December rejected challenges filed in state courts, and the 7th U.S. Circuit Court of Appeals in September upheld the law in a separate action.

As for Michigan, a state judge in February dismissed a union lawsuit arguing the state’s Capitol building had been improperly closed during the 2012 debate on right-to-work legislation. Public-sector workers, meanwhile, have appeared before the Michigan Supreme Court to argue that they should be excluded from the law.

That last case has yet to be resolved, and several of the stalled challenges remain open to appeal. Still, opponents face a substantial hurdle embedded in federal law.

The Taft-Hartley Act 1947 explicitly allows states to adopt right-to-work laws prohibiting labor contracts that require the payment of union dues as a condition of employment at certain companies.

Patrick Semmens, vice president for the National Right to Work Legal Defense Foundation, said opponents are fighting an uphill battle when they try to argue that state laws – even those contained in a state constitution – should trump a federal act.

Semmens, whose organization provides free legal aid to employees who think they are not being afforded the protection of right-to-work laws, said he believes the union representatives challenging Wisconsin’s law know their chances of prevailing are slim. In all likelihood, he said, they are hoping to bring right-to-work to a temporary halt by going before a state judge who they believe will be favorably disposed toward them.

“I suspect they probably know that ultimately the arguments they make in this case are unlikely to succeed,” Semmens said. “But they are hoping to cause some confusion or delay implementation.”

The unions that filed suit in Wisconsin on Tuesday are being represented by four attorneys from The Previant Law Firm of Milwaukee. Attempts to reach the lead attorney in the group, Fred Perillo, were unsuccessful Wednesday afternoon.

Dane County and federal judges did temporarily halt parts of the 2011 Act 10 legislation that greatly curtailed most public workers’ collective-bargaining rights. The full effect of the law, though, was later restored on appeal.

Republican state lawmakers, in the weeks before they passed right-to-work legislation, said they were purposefully trying to put forward a “clean” bill that would be easy to defend in court. Some legislative leaders had talked at one point of exempting the trades from right-to-work but backed down amid questions about whether carve-outs for a particular industry would make the proposal vulnerable to legal challenges.

Myranda Tanck, a spokeswoman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said her boss and other supporters of right-to-work were fully aware of the likelihood that would unions would try to stop the law in court. When writing their own right-to-work legislation, she said, Wisconsin lawmakers borrowed from Indiana and Michigan in part because those states’ laws proven ability to withstand legal challenges.

“Right-to-work laws are not new, and they are not untried or untested,” Tanck said. “They exist in 24 other states, and we are very confident in ours.” Follow @TDR_WLJDan