The Legal Argument That Could Overturn ‘Right-to-Work’ Laws Around the Country

Union supporters had reason to cheer earlier this month when Wisconsin Gov. Scott Walker’s hated “right to work” law was overturned by a Dane County Circuit Judge. Unfortunately, the decision is all but certain to be overturned by Wisconsin’s conservative Supreme Court. But contained in the case is a line of questioning over the constitutionality of the right-to-work concept that has quietly been playing out in federal courts.

The result could be that all right-to-work laws are nullified—and sooner than you might imagine.

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 Sweeny 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.

The judges who rejected the “takings” logic in Sweeney vs. Pence argued that unions weren’t uncompensated for their duty to represent all workers in a bargaining unit. They wrote, “we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table.” This is a bunch of ahistorical nonsense that betrays a lack of understanding of labor relations and power dynamics.

But why should we expect a couple of judges to get this right when most union activists are so muddled on the history and effects of the duties of exclusive representation and the union shop? To win, we need to understand our history and have real clarity on our goals to regain power.

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