Schimel sticks up for right-to-work law

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Wisconsin Attorney General Brad Schimel is calling for the rejection of a lawsuit filed against the state’s new right-to-work law, arguing it not only makes use of a “novel” legal theory but is also grounded in no prior case law.

Days after Gov. Scott Walker signed legislation in March making Wisconsin the country’s 25th right-to-work state, various union groups filed a suit in Dane County courts alleging the new law will result in an unconstitutional taking of their property. The unions – the Wisconsin State AFL-CIO, United Steelworkers District 2 and Machinists Local Lodge 1061 of Milwaukee – cited a provision in the state constitution forbidding governments from taking property for a public purpose without providing just compensation.

So-called right-to-work laws, which have also been adopted recently in Michigan and Indiana, ban the appearance of “union-security clauses” in labor contracts reached between employers and unions. Those clauses generally require workers to compensate a union for the negotiating it does on their behalf.

The plaintiffs challenging Wisconsin’s right-to-work law argue that when they become the sole bargaining unit for a group of workers at a particular company, they are obliged by state law to represent employees who are not formal union members. Because unions count on worker payments to cover the cost of negotiations, the plaintiffs contend, they are deprived of a property interest when they lose the ability to automatically collect the money.

In a brief submitted to the courts on Tuesday, Schimel was quick to cast doubt on those contentions. At the heart of his argument is the fact that nothing in state or federal law forces unions to become the exclusive representative of employees at a particular company.

That status as the sole bargaining unit, and the related expense of having to represent all employees, is instead something that union officials themselves choose to take on when they enter into a labor contract with an employer, Schimel contended.

“In other words, Plaintiffs have voluntarily agreed to incur these expenses as the exclusive bargaining representatives of the employees in the bargaining unit,” according to Schimel’s brief. “No law required these unions to include these services in their collective bargaining agreements.”

Wisconsin’s right-to-work legislation is often deemed one in a series of blows that Republican lawmakers have dealt labor unions in recent years, going back to the 2011 “Act 10” law that greatly curtailed the collective-bargaining rights of most public workers. Act 10 was different, though, in that it dealt largely with Wisconsin law and thus could not be bolstered by precedents set in other states.

The result was a crop of lawsuits attacking the law on a variety of fronts. The attempts were eventually unsuccessful, but not before reaching the state Supreme Court.

Wisconsin’s right-to-work law, in contrast, makes use of a template established by the federal Taft-Hartley Act of 1947, which explicitly allows states to adopt laws that prohibit union-security clauses from appearing in labor contracts. States that have stuck close to what the act allows have proved to be more or less immune from lawsuits.

Elsewhere in his 24-page brief, Schimel goes beyond casting doubt on whether unions have a property interest in payments collected from employees. He also questions whether the right-to-work law was in fact allowing the government to take anything and, even if so, if what was being taken would be put to a public use.

Schimel said right-to-work laws are actually much more about preventing money from being collected from workers who many not want to support unions.

“If anyone supports ‘taking’ property, it is Plaintiffs,” according to the brief. “It is Plaintiffs who want to confiscate money from workers who do not want to be part of their unions. There is simply no case or legal proposition supporting the premise that a labor union has a property interest in money in the pockets of workers who are not union members.”

The brief also takes the plaintiffs to task for what it alleges are procedural errors. The unions that filed the lawsuit, for instance, have asked for summary judgment — a finding in their favor without the need to go to trial.

In his brief, Schimel contended the request for summary judgment was not filed at the correct time because it was made before the defendants had turned in a response to the initial lawsuit. Follow @TDR_WLJDan