As Expected, Unions File Lawsuit to Challenge the Legality of Wisconsin’s Right-to-Work Law

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April 28, 2015

Yesterday, as expected, several labor unions filed suit in the Dane County Circuit Court, challenging the constitutionality of Wisconsin’s Right-to-Work Law [2015 Wisconsin Act 1]. A copy of the complaint filed by the labor unions is available here: Right to Work Complaint for Declaratory and Injunctive Relief

Recently, labor unions in Indiana unsuccessfully challenged Indiana’s right-to-work law based upon constitutional grounds markedly similar to those asserted by the labor-union plaintiffs in the Wisconsin case. These legal arguments failed before the Indiana Supreme Court and the federal Seventh Circuit Court of Appeals [which presides over Illinois, Indiana and Wisconsin]. However, the dissenting Court opinion in the Seventh Circuit case was sympathetic to the labor unions’ constitutional arguments—which likely guided the plaintiffs in the Wisconsin case filed yesterday, and may have given the labor-union plaintiffs a reason for guarded optimism.

One key to the legal challenge mounted in Wisconsin is the notion that unions are “forced” to exclusively represent “free riders” [those employees who are part of a bargaining unit but who choose not to become a member or pay union dues/fees]. Check out my previous blog on the so-called “free rider problem,” and the availability of “members-only” bargaining units as a solution to the problem, available here. This same argument was rejected by the Indiana Supreme Court—which concluded that “members-only” unions are a viable option, and that this option undermined the unions’ “takings clause” constitutional challenge—which was based upon the notion that a labor union’s only option is to be an exclusive-agency union [representing all workers—even those who are not members and do not pay dues/fees]. A copy of the Indiana Supreme Court decision is available here:  Indiana Supreme Court Decision Interestingly, the labor-union plaintiffs in the Wisconsin case [see the above link for a copy of the complaint] take the position that Wisconsin’s Right-to-Work Law specifically prohibits “members-only” bargaining units, and requires exclusive-agency bargaining units—although the language of the Wisconsin Right-to-Work law is completely silent as to “members-only” bargaining units. Undoubtedly, those tasked with defending the constitutionality of Wisconsin’s Right-to-Work law will point out that the newly-enacted law does not expressly prohibit “members-only” bargaining units, and such “members-only” arrangements remain a viable option undermining the labor-union plaintiffs’ main argument in the Wisconsin case.

This will undoubtedly be an interesting case to follow in the coming weeks and months. However, even if you don’t—rest assured that we will!

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