DOJ files brief in right-to-work appeal

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State lawyers filed their first brief Wednesday in their appeal of a Dane County Judge’s decision to strike down Wisconsin’s right-to-work law.

Department of Justice lawyers used the filing to argue against various unions’ contention that the state’s right-to-work law deprives them of property. The law became the subject of a court challenge filed last year by Wisconsin State AFL-CIO, United Steelworkers District 2 of Menasha and Machinists Local Lodge 1061 of Milwaukee.

The unions contended that they had a property interest in the “fair-share fees” that, before the state’s adoption of right to work, they were able to collect from certain non-union members at unionized companies. Those fees were meant to pay for the bargaining that the labor organizations did on behalf of those employees but were to stop short of covering any union political activities.

Union officials have expressed concerns that right-to-work laws tempt employees to become free-riders. In other words, when employees no longer have an obligation to pay union fees, some will simply choose to not pay for the bargaining that labor groups still must do on their behalf.

Dane County Judge William Foust agreed with the plaintiffs in April and found that Wisconsin’s right-to-work law would give rise to an unconstitutional “taking” of unions’ property. The state responded with an appeal and eventually won a stay that put right to work back in effect until the question of its constitutionality could be decided by a higher court.

In their brief filed Wednesday, Department of Justice officials contended that any economic harm caused by right to work is “slight” and that the union plaintiffs have failed to point to any specific, concrete interest that the state has taken. They also argued that if unions have lost anything, they have been compensated by their ability to remain the exclusive bargaining representatives of employees at unionized companies.

Gov. Scott Walker signed legislation in March 2015 making Wisconsin a right-to-work state.

“I feel confident Wisconsin’s right-to-work law will be found constitutional by the Court of Appeals,” said Attorney General Brad Schimel in an official statement. “More than half the states across the country have similar laws that have passed constitutional muster.”