Constitution Daily

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Constitution Check: Do labor unions have a new answer to right-to-work laws?

April 26, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the debate over “right-to-work” laws and a potentially important case in Wisconsin.

2011 Wisconsin Union Protests


“I’ve asked Judge Foust to stay his order to ensure that the [Wisconsin] right-to-work law remains in effect on appeal.  Given that 25 other states have right-to-work laws and none of those have been declared unconstitutional, I am confident Wisconsin’s law will be upheld.  Therefore, it is imperative that Wisconsin’s right-to-work law remain in effect while on appeal.”

 – Excerpt from a public statement by Wisconsin Attorney General Brad Schimel on April 18, announcing the state’s effort to block a state judge’s ruling ten days earlier against the right-to-work law, based on the Wisconsin state constitution.

“We are disappointed our motion for stay in the right-to-work case was denied by Dane County Circuit Court and plan to seek a stay in the court of appeals, where we feel confident this law will be upheld.”

 – Statement by Attorney General Schimel on April 25, after the state judge refused to put the decision on hold during the state’s appeal.


For decades, labor unions in America have chafed at what they call the “free rider” problem, but that very problem has been more aggravating to them with the spreading success of “right-to-work” laws.  Lately, though, their lawyers have fashioned what is potentially an effective answer to that problem: the U.S. Constitution.

The “free rider” issue, as described by labor unions, grows out of the fact that federal law requires them to provide bargaining and grievance-resolving services to all of the workers in the bargaining unit that the union has been chosen to represent, but when some employees represented by that union choose not to join, they get those services for free, when – in the unions’ view—they ought to be helping finance at least a fair share of those costs.

The problem, unions complain, deepens when a state enacts a “right-to-work” law, because those laws bar unions from charging non-members any dues or fees for those services.

The right-to-work movement keeps spreading: in February, West Virginia became the 26th state to adopt such a measure; it has not yet gone into effect.  Unions in the state failed in an effort to block its passage.

Lawyers for unions have tried out the constitutional answer to their “free-rider” grievance in a federal court case involving an Indiana right-to-work law, but ultimately failed on a split 5-to-5 vote to get a full hearing on the idea in that appeals court.  Frustrated, the unions gave up without taking that test case on to the Supreme Court.  (There were some procedural side-issues in the case that might have kept it from being an ideal test case to take to the Justices.)

Now, the same maneuver – but based on a state constitution, not the federal document – is having some success in state court in Wisconsin. That is a first; a similar state constitutional challenge failed in Indiana state courts when that state’s law drew parallel challenges in the state as well as federal courts. It is clear that the issue will not go away, so it almost certainly will be back in the federal courts, too.

The constitutional idea goes like this: When unions are required by law to provide their services to everyone on a given company’s payroll, whether members of the union or not, their property is being taken for a public purpose and the failure of non-members to pay for a share of those services amounts to an unconstitutional seizure (technically, a “taking”) of their property under either the federal or a state constitution.

The federal Constitution provides, in the Fifth Amendment, that “no person” may have their “private property…taken for public use without just compensation.”  While many states have similar clauses in their own constitutions, that is actually not necessary for the protection of private property within those states: The Fifth Amendment “takings clause” has been absorbed into the Fourteenth Amendment through the analytical doctrine of “incorporation,” thus requiring states to apply that protection within their own borders.  (That “incorporation” of the “takings clause” came as long ago as 1897, in a Supreme Court decision: Chicago, Burlington & Quincy Railroad v. Chicago.)

Wisconsin, of course, is now an attractive venue for labor unions to mount a constitutional challenge to that state’s right-to-work law.   Under the leadership of the state’s Republican governor, Scott Walker, Wisconsin has pursued several efforts to cut down on the power and influence of labor unions.   A right-to-work law, so-called “Act 1,” was enacted last year as part of that effort.

It is a typical right-to-work statute: it bars labor unions from assessing any dues, fees or charges of any kind from non-union members.  Thus, all of the costs of a union’s collective bargaining efforts, of carrying out a labor contract, and running a grievance process, are covered  solely by the dues paid by union members.

The day after Governor Walker signed that measure, two labor unions, Wisconsin branches of the Machinists Union and the Steelworkers Union, along with the state version of the AFL-CIO, sued in state court to challenge the law.  Act 1, the lawsuit argued, transfers the union’s property – its services – to non-members, and the union gets nothing in return.

On April 8, state Circuit Court Judge C. William Foust of Madison ruled, striking down Act 1 under the state constitution.  State officials promptly planned an appeal, and are now in the process of trying to get Judge Foust’s ruling delayed while that appeal goes forward.  Because the case turns solely on state, not federal, law, it will be resolved only in state courts.

But the reasoning Judge Foust used, paralleling that of five judges on the federal Seventh Circuit Court in the Indiana case, already has gained a prominence beyond the borders of Wisconsin.  And, even if the state’s supreme court ultimately were to uphold Act 1 against the state constitutional challenge, the case of Machinists Union v. Wisconsin already is figuring prominently in the ongoing debate over trade unionism in America.

After a series of setbacks across the nation, generally diminishing the social and political influence of unions, their leaders and members across the nation are suddenly finding reason to be pleased with Wisconsin.

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