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Right to Work Law Struck Down by Wisconsin Court; Experts Say Ruling Won’t Stand

| Apr 12, 2016 | Uncategorized


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 Right to Work Law Struck Down by Wisconsin Court; Experts Say Ruling Won’t Stand

In Victory for Unions, Law on Dues Is Struck Down in Wisconsin


APRIL 8, 2016

A Wisconsin law barring unions from requiring workers in the private sector to pay the equivalent of union dues was struck down late Friday after a judge deemed it a violation of the state’s Constitution.

Democrats and union leaders in the industrial Midwest, a region where organized labor has been weakened by a series of new laws in recent years, cheered the ruling, but its fate almost immediately seemed uncertain. Republican leaders in Wisconsin, where a conservative bloc holds a majority on a sharply divided State Supreme Court, pledged to appeal the lower court’s ruling and said they felt confident that the law would ultimately stand.

The law, which was pressed through Wisconsin’s legislature in March 2015 by Republican leaders and signed by Gov. Scott Walker as he was preparing to run for president. It made Wisconsin the 25th state to adopt such legislation, following closely behind Indiana and Michigan. In Wisconsin, the law went into effect immediately, over the objections of labor leaders, who argued that the measure was meant to weaken their power and would lower workers’ wages.

In his ruling, Judge C. William Foust of Dane County Circuit Court agreed with three unions that had contested the measure, saying that the law amounted to a taking of their property without just compensation. The unions — local chapters of the International Association of Machinists, United Steelworkers and the A.F.L-C.I.O. — contended that the law added up to a seizure of their property since they were now required to provide union benefits like collective bargaining to workers who opted not to pay the equivalent of dues.

“Labor is a commodity that can be bought and sold,” the judge wrote in his ruling. “A doctor, a telephone company, a mechanic — all would be shocked to find they do not own the services they perform,” he said, adding later: “Unions are no different; they have legally protectable property interest in the services they perform for their members and nonmembers.”

For some in Wisconsin, where union membership numbers have fallen precipitously in recent years, the measure was only the latest contentious chapter in a set of moves led by Mr. Walker and his Republican-held capital. Historically a stronghold of labor, Wisconsin has lost tens of thousands of union members, leaving the state with a smaller percentage of union members than the national average, federal figures made public this year show.

Soon after taking office, Mr. Walker pushed for a bill that cut collective bargaining for most public sector workers and removed requirements that they pay fees if they chose not to join unions that represented them. The law from 2015, found unconstitutional in Friday’s ruling, applied to the private sector.

Democrats, who had vehemently objected to the right-to-work law, hailed the ruling. Representative Peter Barca, the Democratic minority leader in the Assembly, said in a statement that Wisconsin’s economy has suffered since the right-to-work law was signed.

“Middle class Wisconsin workers are in crisis and so-called ‘right to work’ laws have been shown to drive down wages and economic growth,” he said. “The extreme right-wing Republican agenda has been incredibly harmful to working people and businesses in Wisconsin.”

Phil Neuenfeldt, president of the Wisconsin State A.F.L.-C.I.O., said he viewed the decision as a “needed check on Scott Walker‘s attacks on working families.” He added: “Right to work has always been unjust, now it’s proven unconstitutional.”

But Republicans, including the state attorney general, Brad Schimel, seemed confident that the ruling will not hold.

“Once again a liberal Dane County judge is trying to legislate from the bench,” Robin Vos, the state House Speaker, a Republican, said. “No one should be forced to join a union or pay union dues as a condition of employment.”

Governor Walker said: “We are confident Wisconsin’s freedom-to-work law is constitutional and will ultimately be upheld.”

Even some Democrats seemed to agree that the ruling might only be temporary.

Carolyn Fiddler, the national communications director for the Democratic Legislative Campaign Committee, said that while she considered the ruling a “positive move for working families in Wisconsin,” the conservative state Supreme Court was likely to uphold the law.

“It seems extraordinarily unlikely that this ruling will stand in the long term,” she said. “Higher courts will probably negate this in some fashion. It seems likely that Scott Walker’s anti-union Wisconsin will effectively remain in existence in the long term.”


Wisconsin Supreme Court likely to reinstate Scott Walker’s anti-union right-to-work law: experts


Labor leaders and their allies were thrilled when a Wisconsin judge ruled on Friday that the state’s year-old right-to-work law – signed by Governor Scott Walker – violated the state’s constitution .

But several law professors predicted that the Wisconsin supreme court, on which conservative justices have a commanding 5-2 majority, would ultimately overturn the lower court judge’s decision and rule that the law does not violate the state constitution.

Walker and Wisconsin’s Republicans consolidated conservative control of the state supreme court last Tuesday when Rebecca Bradley – an outspoken conservative whom Walker had appointed to fill a vacancy left by a justice’s death – won a full 10-year term in a 53% to 47% vote. She was helped by $2.6m in spending from outside groups.

On Friday, William Foust, a state judge in Dane County, which includes Madison, ruled that the state’s right-to-work law was an unconstitutional taking of union property because it required unions to provide benefits to workers who didn’t pay any union dues or fees.

Paul Secunda , a labor law professor at Marquette University in Milwaukee, said he strongly agreed with the ruling. Then he added: “Will it be upheld? Absolutely not. It will be overturned by a very partisan Wisconsin supreme court, especially with this week’s election of a fifth conservative justice.”

When Walker signed the law in March 2015 , it made Wisconsin the 25th state to adopt right-to-work, which bars any requirement that workers at unionized workplaces pay union fees. Unions are required to provide these non-payers – unions call them “free riders” – regular union services, such as representing them when they have grievances.

In the past five years, Indiana, Michigan and West Virginia have also enacted such laws, with Republicans championing them as measures that advance employee freedom and improve states’ business climates. Unions denounce these measures, saying they encourage free riders and are designed to undercut labor’s strength, membership and finances.

Business groups attacked Friday’s ruling and predicted that it would be overturned. Scott Manley, senior vice-president of government relations with Wisconsin Manufacturers and Commerce – the state’s leading business group – said: “The judge’s ruling is an act of blatant judicial activism that will not withstand appellate review. Judge Foust came to the absurd and legally untenable conclusion that labor unions have a property right to the wages of workers.”

Walker agreed, writing on Twitter: “We are confident Wisconsin’s freedom-to-work law is constitutional and will ultimately be upheld.”

Kenneth Dau-Schmidt , a labor law professor at Indiana University, noted that in 2013 an Indiana judge had declared that state’s right-to-work law flouted the state constitution’s takings provision. But the Indiana supreme court upheld the law.

Dau-Schmidt said a stronger case could be made under Indiana’s constitution than under Wisconsin’s that right-to-work is unconstitutional.

“Our Indiana constitution says you cannot compel the provision of services without compensation,” he said. “Our takings clause is broader in that it expressly mentions services.”

He forecast that the Wisconsin supreme court would uphold the right-to-work law, saying the court was generally more partisan than Indiana’s.

Wisconsin unions cheered Friday’s ruling – it was a bright spot for labor after Walker’s five-year offensive, the governor having enacted a landmark law in 2011 that all but ended collective bargaining for public-sector unions.

Responding to Foust’s ruling, Phil Neuenfeldt , president of the Wisconsin State AFL-CIO, said: “The courts put a needed check on Scott Walker’s attacks on working families. Right-to-work goes against the Wisconsin principles of fairness and democracy and hurts all of Wisconsin by eroding the strength of our middle class.”

Henry Farber, a labor economist at Princeton, found in a study that right-to-work laws, by allowing “free riders”, shrink union treasuries. Another study concluded that the percentage of free riders in right-to-work states ranged from 9% in Georgia to 39% in South Dakota.

In another study, David T Ellwood, a professor at the Kennedy School of Government at Harvard, and Glenn A Fine, a former Justice Department official, found that in the five years after states enacted right-to-work provisions, the number of unionization campaigns fell by 28%, and in the next five years by an additional 12%.

Secunda predicted that Wisconsin’s right-to-work ruling would mobilize conservatives and union supporters alike in this autumn’s elections. He predicted that the ruling would ultimately prove a “wash” in terms of which party was helped more.

Dau-Schmidt added: “In Wisconsin, this could certainly get people riled up. I think the gloves are off. Labor realizes that Republicans are out to smack them up. It’s not just that labor is down – they’re really looking for the extirpation of organized labor.”

Secunda saw one silver lining for labor.

“At the very least,” he said, “this puts a spotlight on the idea that there are free riders who are taking advantage of union services without having pay for them.”



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