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Unions weigh options following right-to-work setback

Although a court decision dealt a serious blow this week to two unions’ attempt to have Wisconsin’s right-to-work law overturned, the fight is not over.

A three-judge panel of the U.S. 7th Circuit Court of Appeals on Wednesday rebuffed a challenge of Wisconsin’s right-to-work law filed two years ago by locals 139 and 420 of the International Union of Operating Engineers. The panel’s short, nine-page opinion found that the plaintiffs had not made a case that differed substantially from a previous case that led to the court upholding Indiana’s similar right-to-work law.

Because of that precedent, the 7th Circuit judges saw no reason to closely re-examine the arguments being made for Wisconsin’s law.

Although seemingly final, the decision leaves several options to the union plaintiffs, said Scott Kronland, a lawyer who represented the IUOE in its right-to-work challenge. The plaintiffs, he said, could now petition the 7th Circuit for an en banc review of the precedent set in the Indiana case: Sweeney v. Pence.

If granted, the entire group of 7th Circuit judges would review the matter, rather than a smaller panel. A majority of the larger contingent of judges could decide a panel decision was erroneous and overturn it.

A request for an en banc review was made in the Indiana case and not accepted only following a split, 5-5 vote by the judges on the court. That history suggests a similar request in the Wisconsin case would at least have a chance of being accepted.

Kronland said the IUOE has yet to decide what the next step in its right-to-work case will be.

“We think it’s unfair that unions, under right-to-work laws, are forced to represent workers completely for free,” Kronland said. “That’s not what Congress intended.”

Still another possibility, Kronland said, would be to take the dispute before the U.S. Supreme Court. The justices might be more inclined to accept a right-to-work case, he said, if a federal Appeals Court outside the 7th Circuit were to deem another state’s right-to-work law unconstitutional.

A challenge of Idaho’s right-to-work law, for instance, has been mounted in the 9th Circuit Court of Appeals. Were that case successful, it would result in a “circuit split” that might prompt the U.S. Supreme Court to step in and resolve the dispute once and for all.

So far, many of the challenges of right-to-work laws around the country have been grounded on similar arguments. In the Wisconsin case, the plaintiffs look back to the Taft-Hartley Act of 1947 — the act allowing states to adopt right-to-work laws.

IUOE locals 139 and 420 argued that federal lawmakers’ intention then was merely to let states pass laws banning contract clauses that require union membership as a condition of working at certain companies. Congress had not, the unions contend, meant to allow the prohibition of payments meant to cover the representation that unions have to provide to all employees — members and nonmembers alike — at those same companies.

If federal law were interpreted correctly, the plaintiffs argue, labor organizations in right-to-work states should still be able to collect fees to pay for their representation, even if they can’t collect full union dues that might cover various political and lobbying activities.

Even as Kronland and the IUOE consider their next steps, a separate challenge of Wisconsin’s right-to-work law is advancing in state court on slightly different grounds. Shortly after Gov. Scott Walker signed legislation in March 2015 making Wisconsin the country’s 25th right-to-work law state, a suit was filed in state court by the Wisconsin AFL-CIO, United Steelworkers District 2 of Menasha and Machinists Local Lodge 1061.

Unlike in the federal case, the plaintiffs enjoyed some early success. Dane County Circuit Court Judge William Foust sided with the plaintiffs in April, finding that Wisconsin’s right-to-work law would give rise to an unconstitutional “taking” of unions’ property.

The state, though, responded with an appeal and eventually won a stay that put right to work back in effect.

Fred Perillo, a Milwaukee-based lawyer representing the unions in the challenge in state courts, said oral arguments in the case were held before the state’s District 2 Court of Appeals on May 3. He said the judges have provided no indication of when they will hand down their decision but he is hoping that will happen this year.

Perillo said he believes Wednesday’s decision in the federal 7th Circuit will have little bearing on the state case. For one, rather than the Taft-Hartley Act, the state case involves contentions that right-to-work laws unconstitutionally deprive unions of their property.

Although the federal case had touched on similar contentions, they were not at the center of the arguments being made there.

“I don’t think the (federal) decision adds anything,” Perillo said. “It leaves the legal landscape the way it was before.”


About Dan Shaw, dshaw@wislawjournal.com

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at dshaw@wislawjournal.com or at 414-225-1807.

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