Last week's ruling by a Madison circuit court judge that the state's new right-to-work law is unconstitutional wasn't entirely unexpected, and many who anticipated it are equally anticipating a different outcome in higher courts.
It's not without precedent, groups such as the National Right to Work Foundation say, pointing to a Dane County judge's similar tossing of Gov. Scott Walker's collective-bargaining reforms in 2011, only to have higher courts uphold the law. Ultimately, they predict, this law will be found to be constitutional, too, as similar laws in other states have been.
But it's not necessarily a slam dunk, and it could all boil down to one question: Does the law compel Wisconsin unions to engage in collective bargaining-where by law they must represent all workers, members as well as nonmembers - or can they reasonably choose not to engage in bargaining and thus provide services only to their own members?
To recap, last week Dane County circuit judge William Foust struck down the state's newly minted right-to-work law, saying it was unconstitutional. The law forbids the negotiation of so-called union security contracts, in which a company requires its employees to join a union or pay union dues or "fair share" fees to the union to help cover the costs of collective bargaining.
Unions say they must represent all workers whether they belong to the union or not, by federal law, and so all workers should pay their fair share. Right-to-work supporters say workers should not have to pay fees or dues to a union they don't want to join and should have a "right to work" without such coercion.
Legally, Foust said the law violated a constitutional clause that prohibits the state from taking property from individuals or organizations without fair compensation. By prohibiting unions from collecting a fee from nonmembers for the collective-bargaining services they provide them, the state is effectively taking the unions' property, Foust concluded.
"Plaintiffs (the unions) plainly theorize that services constitute property under the law and the Court agrees," Foust wrote in the decision. "The conclusion is logical. Labor is a commodity that can be bought and sold. A doctor, a telephone company, a mechanic - all would be shocked to find they do not own the services they perform. While each accepts the fact that they perform them in a regulated environment, that concession does not surrender their ownership of the services in the first place."
Unions are no different, Foust said: They have a legally protectable property interest in the services they perform for their members and non-members.
"Perhaps the most straightforward property interest to identify is the union's treasury," Foust wrote. "When members pay their dues and non-members their fair-share fees, all would say the union is building a treasury that it holds as property. When it expends those funds to perform services, as it must, no one would dispute that that money is the union's property. Plaintiffs will be obligated to spend treasury -their property - on services for which they cannot legally request compensation. This is enough to establish that unions do have a legally protectable property interest at stake."
The heart of the matter
The takings issue might form a logical constitutional consequence of the law but only if a union must engage in collective bargaining and must represent all the workers of a workplace, without choice. Then, Foust's view of an unconstitutional takings becomes reasonable.
And, of course, that's exactly what the unions say the reality is. Once a union is selected by a majority of workers and certified, the union gains exclusive representation for all workers in that unit. Federal law requires the union to then represent all the workers fairly and equally, without regard to membership. A union cannot negotiate minimum wages for nonmembers and higher wages for members, for instance.
That's where the idea of the "fair share" fee comes from, and it forms the foundation of Foust's reasoning.
"The duty of fair representation has been well developed, understood, and applied throughout the long history of organized labor law in Wisconsin," the judge wrote. "Because a union had obligations to all employees, not just its dues-paying members, unions relied on union security clauses to ensure non-members paid the equivalent of full union dues. But seeing the First Amendment problem with requiring non-members to pay for all of a union's activities, including those political, the courts narrowed the permissible charge to the costs of collective bargaining, contract administration, and grievance adjustment. Unions, then, could require non-members pay only a 'fair share fee' equal to the cost of services they receive from the union's core function, despite their non-membership."
Right-to-work critics, though, argue that unions can represent only their members if they choose to, so long as they don't stand for election and become certified as the "only" legal employee representative. Indeed, as Foust wrote, the state argued that "neither federal nor state law requires a union or other entity to become an exclusive bargaining representative."
Foust calls that a disingenuous argument, because a union that does not stand for election to become a certified bargaining entity forfeits all real power in the workplace. Indeed, Foust reasoned, under state law, such a body is not even a union because, the judge pointed out, a Wisconsin union is defined as any "employee organization in which employees participate and that exists for the purpose, in whole or in part, of engaging in collective bargaining."
"In sum, a Wisconsin union must engage in collective bargaining; to engage in collective bargaining, it must represent a majority of the employees in a collective bargaining unit, which is a majority of all employees in the workplace," Foust wrote. "For an employer to bargain collectively with a union representing anything less than a majority of employees is prohibited."
And so, Faust concluded, a union makes no election to become the exclusive representative. If it exists at all, he wrote, as statutorily defined by law as a unit to engage in collective bargaining, then it must be the employees' exclusive representative, chosen by a majority of the employees.
"It cannot decline exclusive representative status unless it declines to be voted in at a workplace to begin with," he wrote. "Neither the State nor Amici have substantiated their argument with any way in which a union could evade this status. The deliberate interplay of Wisconsin statutes and case law make it so."
But opponents disagree and quickly reply that a union can and does provide other services than collective bargaining and could forgo that latter service. That they choose not to do so, and thus choose to become the exclusive representatives in collective bargaining for every worker, should not entitle it to force that choice financially upon every worker.
Indeed, critics say, there are powerful advantages apart from fair-share fees to becoming the exclusive bargaining representative. As James Sherk pointed out in National Review, if the union did not choose to become the exclusive bargaining representative, the most productive workers would negotiate separately, and that would mean more money and promotions for them, and less money and fewer positions for union members depending on seniority for better pay and promotion.
"Unions want their contracts to apply to all workers, especially those they hold back," Sherk wrote.
The writing on the wall
At first blush, it would appear that Foust's decision is headed for defeat. That's a no-brainer in the state Supreme Court, where Rebecca Bradley's election to a full 10-year term in April gives conservatives a 5-2 majority, with former chief justice Shirley Abrahamson and Ann Walsh Bradley left as the lone liberals standing.
But even if it makes way to federal jurisdiction, critics say the decision is fatally flawed. In his first antecedent, Foust declares that "(i)n sum, a Wisconsin union must engage in collective bargaining."
If that's true, the rest of his syllogism might hold, but, as noted above, critics say it is not true. As he quotes the law himself in another part of the decision, a union is "any employee organization in which employees participate and that exists for the purpose, in whole or in part, of engaging in collective bargaining."
So the question boils down to whether that language compels a union to bargain collectively. In Foust's view, it does, for the statutory language clearly makes collective bargaining a core function of any union, and any union choosing not to seek certification and bargaining rights is choosing not to exist, in Foust's view, and the judge thinks that is not a reasonable choice.
However, right-to-work supporters say nothing in the black-and-white language of the law compels a union to engage in collective bargaining, even if its purpose is to one day do so, in addition to other services it provides. Indeed, in the wake of Act 10, unions not seeking recertification have continued to operate, and may seek to earn majority support in future certification elections.
So in reality, a union's purpose may be to seek exclusive collective-bargaining rights, and it may choose not to seek certification until it thinks it has a majority. When it earns that majority, it wins certain exclusive rights and accepts certain limitations, in this viewpoint.
Rick Esenberg, the president and general counsel of the Wisconsin Institute for Law & Liberty, a conservative legal and education organization, underscored the lack of a legal requirement of unions to engage in collective bargaining, and he called the decision an outlier, noting the long history of federal right-to-work court decisions.
"The United States Supreme Court has long recognized that unions have no constitutional right to extract fees from non-members," Esenberg said. "No union is compelled to represent any group of employees. When it chooses to do so, it receives extraordinary statutory privileges. It is free of competition-no one else can represent employees in the bargaining unit-and it can avail itself of a variety of legal remedies compelling the employer to bargain."
With those benefits comes an important limitation in a right-to-work state, Esenberg said.
"Although it must bargain on behalf of all employees, it cannot force those who do not wish to be a member of the union to support it," he said. "In other words, it must persuade workers that its services are worth it. It cannot force them to support an organization that they do not wish to support. If it is unwilling to accept that obligation or to serve as an exclusive agent without the ability to compel payment, it does not have to do so."
To hold that a union has been deprived of "property" because it does not like the burdens that the state imposes upon it in exchange for the legal benefits that it chooses to enjoy is a novel twist in the law, Esenberg said, one that would call numerous regulatory schemes into question.
In another line of attack against the union argument, Wisconsin attorney general Brad Schimel and assistant attorney general Daniel Pennington, in a brief in the case, challenged the takings' argument. Whereas Foust ruled the state could not take union "property" without just compensation, they argued the unions had in fact already been compensated.
In another line of attack against the union argument, Wisconsin attorney general Brad Schimel and assistant attorney general Daniel Lennington, in a brief in the case, challenged the takings' argument. Whereas Foust ruled the state could not take union "property" without just compensation, they argued the unions had in fact already been compensated.
They are granted statutory, exclusive collective bargaining rights for their unions, the attorneys argued, citing federal case law: "The reason the Union must represent all employees is that the union alone gets a seat at the negotiation table."
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