In a piece for In These Times, writer Shaun Richman looks at the legal argument that could overturn “Right-to-Work” laws nationwide. The argument was recently used by the Wisconsin judge who temporarily overturned the state’s “Right-to-Work” law.
While that case is certain to be appealed and overturned by the state’s conservative Supreme Court, it could be used elsewhere in states where circuit courts trend more liberal.
Known as the “Takings clause” of the U.S. constitution, the argument boils down to whether or not a union should be forced to provide benefits without compensation. From Richman:
The logic that the Wisconsin judge leaned upon in his decision has its origins in a federal case called Sweeney v. Pence, in which unions made an unsuccessful attempt to overturn Indiana’s recent right-to-work statute on constitutional grounds. Although the unions themselves did not raise this argument in the 2014 case, Chief Judge Diane Wood argued in her dissent that “right-to-work” provisions violate the U.S. Constitution’s Takings Clause.
“This is a law,” says Marquette Law Professor Paul Secunda, “that compels one private party to provide benefits to another private party with no compensation.” He is convinced that right-to-work laws, which permit represented workers to quit their union and stop paying fees while simultaneously obligating that union to continue to spend resources representing them, are an unconstitutional “taking.”
If the issue makes its way up to the Supreme Court, and the justices agree with Secunda, the result could overturn the section of the National Labor Relations Act that allows states to pass right-to-work measures as well as the statutes in all 26 states that have passed them in one fell swoop.
The Wisconsin case won’t get there. Because Wisconsin is in the same 7th Circuit that rejected the “takings” argument in Sweeney v. Pence (making it, for now, a settled matter there), unions filed their case in state court over the state’s constitution.
But West Virginia and Michigan are states that recently passed right-to-work laws, and they are both in different federal court circuits. Unions in those states could challenge the constitutionality of right to work on the federal level. Unions in Idaho already have a case pending, which is a particularly exciting prospect as that state falls within the liberal 9th circuit. (Keep an eye out for Operating Engineers Local 370 v. Wasden)
The argument is not without critics or consequences. In the piece, Seattle University Associate Professor of Law Charlotte Garden argues that “Judge Wood’s interpretation of the Takings clause is one more commonly advanced by anti-regulatory conservatives, and that labor taking up the cause could have unintended consequences:
“There’s a difficulty of applying existing ‘takings’ law in this kind of context. “Takings” is generally applied to property,and what’s being taken from unions is the labor of their staff.
Instead, a more efficient strategy could be to pressure the NLRB to consider whether unions in “Right-to-Work” states have the right to charge fees to non-members who want to file a grievance.
Richman dives deeper still. Have a look.