The Wisconsin Department of Justice Tuesday came to the defense of a newly enacted right-to-work law which is being challenged by a union lawsuit.
The policy, which bans mandatory union fees as a condition of employment, was passed by the Wisconsin legislature and signed into law by Gov. Scott Walker earlier this month.
The AFL-CIO, Machinists Local Lodge 1061 and the United Steelworkers District 2, in their latest attempt to stop the law, filed a lawsuit arguing the new statewide policy violates their constitutional rights because it requires unions to act on behalf of workers who are no longer required to pay dues. The state’s Justice Department, however, argues the law is constitutional.
Additionally the unions are requesting a temporary restraining order to stop the law until the court makes a decision.
“The law simply provides that Wisconsin workers are not required to join unions or to pay union dues,” the state DOJ argued in a court brief. “Whether unions adjust to this new economic reality is their choice, but Act 1 does not unconstitutionally take any union property.”
The brief argues that under the National Labor Relations Act, labor relations are typically regulated by federal labor law but states can decide on their own whether to be right-to-work. Indeed, Section 14(b) of the NLRA states, “Individual States may prohibit, and some States have prohibited, certain forms of union-security agreements.”
“Just last fall, the Seventh Circuit held that the NLRA did not prohibit Indiana from enacting its right-to-work law,” the brief continued. “And in so holding, the court also decided that Indiana’s state law did not violate the Takings Clause of the U.S. Constitution.”
The brief also noted that the Indiana version of the law was identical to the Wisconsin version and so the previous ruling should be considered. The brief also counters claims by the lawsuit that the law requires unions to represent all workers in a bargaining unit whether they pay dues or not.
“Plaintiffs do not have to offer the expensive services that they claim,” the brief detailed. “Neither federal nor state law requires that a union or other entity become an exclusive bargaining representative, nor does any law require that an exclusive bargaining agent provide a particular level of service to the workers it represents.”
“Indeed, an exclusive bargaining agent’s duty to represent workers in grievance disputes results from the collective bargaining agreement itself, not from any law,” the brief added.
While testify before the state assembly and senate when the law was being debated, James Sherk, a senior policy analyst at The Heritage Foundation, also argued that unions actually have a choice on whether they have to represent every employee in a bargaining unit.
“Federal law does not require a union to act as an Exclusive Representative,” Sherk noted before Wisconsin lawmakers. “The choice of whether to be an Exclusive Representative or Member Only remains with the union.”
Michael Rybicki, a partner at the law firm Seyfarth Shaw, notes that though this is true, its understandable unions would choice Exclusive Representative over Member Only agreements.
“Member Only unions are not very attractive,” Rybicki told The Daily Caller News Foundation. “It certainly dilutes union power.”
Rybicki argues that unions are more likely to successfully bargain with employers if they represent all their workers. However, when it comes to the constitutionality of the law, Rybicki argues the unions don’t have a case.
“It’s a fairly standard right-to-work law,” Rybicki continued. “It does not render clauses in current contracts unlawful.”
Noting that half the states are right-to-work and the law has been upheld in previous cases, Rybicki argues it would “shocking” if the Wisconsin version was found to be unlawful.
A hearing whether to grant a temporary restraining order against the law will begin Thursday. It is not yet known when the courts will decide on whether the law is constitutional or not.
“Plaintiffs are asking this Court to upset a well-settled area of constitutional law,” the DOJ brief concluded. “There is no need for such a hasty and drastic step.”
Wisconsin Policy Research Institute (WPRI) found in a recent poll of Wisconsin citizens that the state overwhelmingly approves of the policy. The poll found 62 percent would vote in favor of such a law, 32 percent would not and 6 percent didn’t know.
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