Organized labor is laying the groundwork for an aggressive legal challenge to right-to-work laws, one that essentially would invalidate most state versions of the law. The challenge could find its way to the Supreme Court next year, conservative groups say.
The challenge — which unions have advanced in Idaho, Indiana, Wisconsin and just this month in West Virginia — argues that state right-to-work laws, which prohibit workers from being forced to join or otherwise financially support a union as a condition of employment, amount to an unfair “taking” of union funds.
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| ‘What the unions are looking for is a split between the circuits. That would compel the Supreme Court to step in and resolve the issue.’ |
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The legal push initially was seen as having little hope for success, since the issue was considered long-settled. That changed after Justice Antonin Scalia’s sudden death in February, which ended the court’s narrow conservative majority. Scalia’s replacement, whenever he or she comes, could shift the court’s balance.
“Five months ago, we thought there were five votes in the court to strike down forced union dues. Now, we are wondering if there are going to be five votes to make mandatory dues a constitutional right for unions,” said Pat Semmens, spokesman for the nonprofit group National Right to Work.
State right-to-work laws have been on the books since the 1940s, and the federal government approved the practice in 1947 as part of the Taft-Hartley amendments to the National Labor Relations Act. Unions hate the laws because they are associated with declining membership and depleted treasuries.
Until recently, most of the states that adopted the laws were in the South and West, which don’t have strong union traditions. That changed in recent years as Indiana, Michigan, Wisconsin and West Virginia, all states with labor groups, adopted the laws. That prompted unions and legal scholars to scour the books for arguments against the measures.
“There hasn’t really been any legal momentum to challenge these laws until very recently,” said Paul Secunda, a labor law professor at Marquette University.
Unions have pushed some novel legal arguments. When the International Union of Operating Engineers sued Indiana in 2013, it argued that federal law allowed the state to only prohibit the collection of full membership dues, not a lesser amount that would cover the unions’ costs of collective bargaining on behalf of nonmembers. The Seventh Circuit Court of Appeals rejected the union’s case in 2014.
The case was largely based on the work of Catherine Fisk, a law professor at the University of California at Irvine, and Benjamin Sachs, a Harvard law professor. Their argument hinges on the fact that unions are generally obligated to represent all workers in collective bargaining and workplace disputes, even in right-to-work states.
In non-right-to-work states, employees can opt out of paying for the union’s political activities but the unions are allowed to charge even non-members a fee for non-political services such as collective bargaining. The workers generally have only the union’s say-so as to what these costs are, though.
Fisk and Sachs argue the National Labor Relations Act’s language on right-to-work refers only to “membership.” Therefore, states can only prohibit requiring that a worker actually become a member of a union or pay equivalent dues.
“On this reading, state right-to-work laws that prohibited compulsory payment of dues and fees would be pre-empted by the NLRA,” they said in an amicus brief in the Indiana case.
The professors added later, “If states could ban mandatory payments, it would have been simple enough to say so” in the federal law. At best, the states could force unions to modestly discount union fees for nonmembers, but that was it. Both professors declined comment, citing their workloads.
The Seventh Circuit court pointed out that the congressional record in 1947 clearly showed that the drafters of the law did intend to allow states to prohibit all dues collection.
It quoted the co-author of the provision, Sen. Robert Taft, R-Ohio, as saying: “Many states have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in such states illegal. As stated in the report accompanying the Senate committee bill, it was not the intent to deprive the states of such power.”
The union in the Indiana case made a second argument, that the prohibition amounted to an unconstitutional “taking” under the Fifth Amendment since it prevented them from charging nonmembers for services it was obligated to provide.
That too was rejected by the court, which said the union had no right to payment under the law and that the right to be the workers’ “exclusive representative” was a benefit to the union since it gave them a way to entice workers to seek membership.
When the union requested a rehearing, that was rejected too, but by a surprisingly narrow margin. A panel of appeals court judges split 5-5, meaning the earlier ruling stood, but it also signaled that there was considerable controversy within the circuit.
Unions have advanced the same argument in a case that reached the Indiana Supreme Court but was rejected in 2014. Similar cases have been pursued in other states.
In April, Dane Court Circuit Court Judge William Foust agreed with three unions’ contention that Wisconsin’s new law was unconstitutional and struck it down. The state has appealed the case, and the state Supreme Court is expected to take it up. The court, which has a conservative majority, is expected to restore the law.
The West Virginia AFL-CIO labor federation officially notified its state’s attorney general in May that it would challenge the state’s new right-to-work law on constitutionality grounds. The state is under the jurisdiction of the 4th Circuit Court of Appeals, one of the more liberal circuits.
A challenge to Idaho’s law particularly worries right-to-work fans because that state is under the jurisdiction of the 9th Circuit Court of Appeals, generally considered the most liberal one.
“What the unions are looking for is a split between the circuits. That would compel the Supreme Court to step in and resolve the issue,” Semmens said.
If it did, it would be anybody’s guess what the justices would do. “Who knows what the court will look like in a year,” Secunda said.
