Wisconsin’s 'Right to Work Law' Has Been Ruled Unconstitutional

A trial court in Wisconsin has ruled that the state’s new law banning union contracts that make every employee the union represents pay his fair share of the costs of representation is unconstitutional.


The union plaintiffs and the court took a fairly novel approach to this issue and ruled on grounds I had never considered: compelling a union to represent non-dues-paying free riders (as the law does) means the state is taking the union members’ dues and forcing them to spend it on free riders without any compensation by the state. It’s an unconstitutional taking without just compensation, in violation of Article 1, section 13 of the Wisconsin constitution. A similar argument under the Fifth Amendment of the U.S. Constitution was made by Judge Diane Wood, dissenting in Sweeney v. Pence, 767 F3d 654, 683-84 (7th Cir 2014), where the majority upheld Indiana’s identical law.

The state requires unions to represent every member of the bargaining unit fairly and equally, so the union can’t avoid spending from its treasury when a non-dues-payer demands that the union take his grievance, in a situation where it would take a union member’s grievance. That representation can involve arbitration fees and the costs of a lawyer, which can easily exceed $10,000. The state imposes this burden on the union for the “public purpose [of] making the business climate in the state more favorable,” but it offers the union no compensation at all. The court rejected the notion that giving the union exclusive bargaining rights was sufficient compensation: “The proposition that winning an election is sufficient compensation and that all subsequent work must be done for free does not make any more sense than the proposition that there is a free lunch.”

That, of course, is the heart of the matter. The whole point of right to work laws is to weaken unions by taking from the dues-paying union members and giving to the free riders, who want a free lunch. It’s an immoral idea, which makes it all the more bizarre that getting the union’s services for free has been elevated to a constitutional claim.

Most constitutional rights are not absolute. The right to free speech does not give one the right to shout “Fire!” in a crowded movie theatre when there is no fire. In that case the right is balanced against others’ right to safety and the right not to be trampled. The right free to association does not give anyone the right to join in a conspiracy to bomb an airport or train station.

When weighing a dissenting worker’s right (the first amendment right to freedom of association and freedom of speech) not to pay union dues while still having the right to the union’s representation, it has to be balanced against the right of the other employees to associate, to join a union, to write a contract that requires everyone to pay his fair share. Why isn’t their choice worthy of at least as much weight and respect as the right of a dissenter to avoid paying dues? How can the right of an individual so outweigh the rights of the majority that they have to pay the dissenter’s share of the costs?

Ultimately, it is only the courts’ generally hostile attitude toward unions and collective action in general that has raised the rights of anti-union individuals over the rights of those who not only value what unions can do for them, but are willing to pay for it.

Nothing compels an individual to work in a union workplace. For every union workplace there are many non-union workplaces to choose from. (Unions represent only 11 percent of the workforce.) Yet so-called right-to-work laws impose the dissenter’s desire to get a free lunch upon the majority of the employees whose contract would otherwise require everyone to pay his fair share. At one point in our history, one out of three employees was in a union, but even then, two out of three were not and the right to work somewhere without paying union dues was never in question, despite the law’s misleading title.

The county court in Wisconsin should never have had to rely on the takings clause to strike down the state’s right to work law. At some point in the last 50 years the U.S. Supreme Court could have and should have struck down the Taft-Hartley Act provision that authorizes such laws. A proper balancing of the constitutional rights of the would-be free riders and the majority of dues-paying union members would uphold the union agreements. But it’s good to see that jurists are beginning to look at these contracts with a fresh eye after so many years of hostility.

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