Disunion in Right-to-Work States

By Alexandra Aaron

Alexandra Aaron is a sophomore at the University of Wisconsin-Madison studying Political Science and History.

On Wednesday February 25th, 2015 the Wisconsin legislature passed a highly contentious right-to-work bill that will prevent private-sector employers from requiring their workers to pay union dues. On March 9, presidential hopeful, Governor Scott Walker signed the bill into law, making Wisconsin the 25th so-called right-to-work state.

Proponents of this type of legislation argue that the states that have prohibited compulsory union participation attract more business and create more jobs. [1] The opposition contends that these new jobs fail to provide workers with necessary training, security, and adequate wages. [2] Both sides supplement their argument with constitutional claims that address the benefit or harm caused by requiring private-sector employees to pay union dues.    

On the floor of the assembly in the Wisconsin legislature, Republicans delivered speech after speech, maintaining that “forced unionism” violates the First Amendment’s protections of speech and association by compelling workers to financially support organizations they may oppose as a condition of employment. In Abood v. Detroit Board of Education, the U.S Supreme Court upheld the rights of public-sector unions to require employees to pay union dues. [3] Recently the Court has strayed from this long-standing precedent, most notably in Harris v. Quinn. Although this case did not invalidate compulsory union membership for public employees, it did contract the definition of a “public employee,” and consequently decreased the applicability of statutes permitting required union fees. [4]

Compulsory unionism in both the private and public sectors has a long, proud history in the U.S. Thus, the recent right-to-work laws represent a departure, rather than an honoring, of union-related precedent. The 1947 federal Taft-Hartley Act, which amended the National Labor Relations Act, first authorized states to pass right-to-work legislation. [5] Claims challenging the constitutionality of these laws, ands the union practices they were designed to repudiate, have, for the most part, been rejected by courts. Despite the hours of Republican pontification in Madison about protecting the constitutional rights of workers, a federal Court has yet to find any such violations in required union membership and dues. Moreover, it would not be up to the state legislatures to pass right-to-work laws if any had. 

On the other side of the aisle in Wisconsin, Democrats contended that the right-to-work legislation violates the Constitution’s Fifth Amendment Takings Clause, which requires just compensation from the government for any seized property. As with the oppositions’ Constitutional claims, no court has yet found any such violations.  Notwithstanding these precedents, immediately after the right-to-work bill’s passage, the Wisconsin AFL-CIO and two other labor organizations filed suit, claiming the law unconstitutionally compels unions to act on behalf of workers, who are no longer required by law to pay union dues. [6] Under the same federal law that enables states to pass right-to-work legislation, unions are required to provide the same services and benefits to non-union members as it would to fee-paying union members. [7] Those opposed to the new bill believe it forces unions to provide services for free, creating, what they would call, a “free-loader” problem. [8]

On March 20th Dane County Judge William Foust denied the AFL-CIO’s request for a temporary injunction, and delayed determining the constitutionality of right-to-work legislation. [9] He claimed that the plaintiffs failed to provide proof that, without the injunction, Wisconsin unions would suffer irreparable harm, a circumstance required for such relief to be granted. [10] In his opinion, Foust noted the presupposed Constitutionality of right-to-work laws, and the heavy burden of proof that puts on plaintiffs to persuade a judge otherwise. [11]

Many recognize the up-hill battle unions face, pointing to the recent 5-0 Indiana Supreme Court decision in Zoeller v. Sweeney, which upheld the Constitutionality of right-to-work legislation. The Justices agreed with the defense, ruling that the state does  not force unions to provide services for free, because it is their choice whether to contract with workers or not. Also, only unions that elect to be the exclusive bargaining agent of employees are subject to the law. [12]

Plaintiffs in Indiana are ultimately expected to appeal to the U.S Supreme Court, while the fate of Wisconsin’s right-to-work legislation is determined in the coming months.

[1] O’Brien, Brendan. “Wisconsin Senate approves right-to-work bill, sends to state Assembly.” Reuters, February 26, 2015. http://www.reuters.com/article/2015/02/26/us-usa-wisconsin-unions-passage-idUSKBN0LU08K20150226

[2] Jamieson, Dave. “How Right-To-Work Laws Hurt Unions.” Huffington Post, February 23, 2015. http://www.huffingtonpost.com/2015/02/23/right-to-work-laws_n_6737130.html

[3] Abood v. Detroit Board of Education, 421 U.S (1977)

[4] Harris v. Quinn, 573 U.S (2014)

[5] Ungar, Rick. “Right-to-Work Laws Explained, Debunked and Demystified.” Forbes, December 11, 2012. http://www.forbes.com/sites/rickungar/2012/12/11/right-to-work-laws-explained-debunked-demystified/

[6] Treleven, Ed. “AFL-CIO Sues State, Scott Walker, Over Right-to-Work Law.” Wisconsin State Journal, March 10, 2015. http://host.madison.com/news/local/govt-and-politics/afl-cio-sues-state-scott-walker-over-right-to-work/article_48d78ca0-01d6-5db9-941e-0e31d018012d.html

[7] Ungar, Rick. “Right-to-Work Laws Explained, Debunked and Demystified.” Forbes, December 11, 2012. http://www.forbes.com/sites/rickungar/2012/12/11/right-to-work-laws-explained-debunked-demystified/

[8] Zimmermann, Sarah. “Unions Denied Injunction in Right-to-Work Lawsuit.” Badger Herald, March 20, 2015. https://badgerherald.com/news/2015/03/20/unions-denied-injunction-in-right-to-work-lawsuit/

[9] Trevelen, Ed. “No Temporary Injunction in Right-to-Work Lawsuit, Judge Says.” Wisconsin State Journal, March 19, 2015. http://host.madison.com/news/local/no-temporary-injunction-in-right-to-work-lawsuit-judge-says/article_f564d855-2525-52eb-900b-38f11851eede.html

[10] Ibid

[11] Ibid

[12] Zoeller, et al. v. Sweeney, et al, 596 U.S (2014)

Photo Credit: Flickr user Truthout.org