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  • WisBar News
    September 20, 2017

    State Appeals Court Upholds Right-to-Work Law, Rejects Takings Claim

    Joe Forward

    Union Workers

    Sep. 20, 2017 – A state appeals court has ruled that Wisconsin’s “right-to-work” law, enacted in 2015, does not amount to an unconstitutional taking of property from labor organizations, reversing a circuit court decision that previously struck down the law.

    Wisconsin became the 25th state to enact a right-two-work law, which prohibits agreements that require workers to pay union fees as a condition of employment.

    A circuit court ruled that the right-to-work law (2015 Wis. Act 1) unconstitutionally requires labor unions to represent employees who decline membership in the union while prohibiting unions from negotiating “fair-share” payments from non-members.

    In other words, the law worked a taking of property (representation) without just compensation (fees or dues) in violation of the Wisconsin Constitution, the court ruled.

    But in International Association of Machinists District 10 v. State of Wisconsin, 2016AP820 (Sept. 19, 2017), a three-judge panel for the District III Court of Appeals reversed, concluding Act 1 does not unconstitutionally take union money or services.

    “The Unions may be required to expend resources to represent employees in a bargaining unit who do not pay fees or dues to the unions, but this result does not constitute a taking,” Judge Mark Seidl wrote.

    “Rather, Act 1 merely precludes the unions from requiring non-member employees to pay fees designed to cover the costs of performing the duty of fair representation.”

    The panel noted that Wisconsin’s duty of fair representation “requires the Unions to provide services – but it does so only when the union is acting as the exclusive bargaining representative for employees in a bargaining unit.”

    The duty applies to exclusive representatives, not labor organizations as a whole, the panel noted. And Act 1 did not create the duty – it has applied for many decades.

    “The benefits received by the exclusive representative include being the sole seat at the bargaining table with the employer, as well as the power to negotiate collective bargaining agreements on behalf of all employees in the bargaining unit,” Seidl wrote.

    “These benefits correspond, however, to the duty to fairly represent all employees in the bargaining unit,” wrote Seidl, noting unions must reassess how to acquire the funds needed to perform duties as exclusive representative.

    The three-judge panel also rejected the claim that Act 1 constitutes a regulatory taking, which can occur when a regulation burdens a property owner’s economic interest.

    The regulatory takings analysis, the panel noted, focuses on what the government takes, not what the property owner lost.

    “The Unions fail in this regard to show that they would not have incurred the economic impact of which they complain in the absence of the legal obligation to do so under the preexisting duty of fair representation,” Judge Seidl explained.

    Related Article

    Federal Appeals Court Upholds Wisconsin Right-to-Work Law – WisBar (July 13, 2017).

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