On April 8, 2016, a Circuit Court in Wisconsin held its “right
to work” law was an unconstitutional taking of the Plaintiff-Union’s property
without just compensation. (International Association of Machinists District 10, Local Lodge 1061 v. State of Wisconsin (Apr.8, 2016) Case No. 2015CV000628.)
Approximately 26 states have adopted “right to work” laws,
which prohibit union security agreements requiring employees to pay union
dues as a condition of employment. As the Wisconsin court noted, the “duty of
fair representation” prevents a union from declining to represent non-paying members.
The Wisconsin Constitution, like the California and federal
Constitutions, prevents the taking of property for public use without just
compensation. A taking requires (1) a property interest (2) that has been taken
(3) for the public use (4) without just compensation.
The Wisconsin court found the Unions had a property interest
in the services they perform for their members and non-members and that the “right
to work” statute was a regulatory taking. While the “right to work” laws were
determined to be for the “public use,” the court found the State had not
compensated the Unions with money for their services. The State argued the
Unions had been justly compensated for their compelled labor with the privilege
of “exclusive representation.” However, the court rejected this argument,
noting “just compensation” requires the payment of money, not a grant of
special privileges or other non-monetary benefits.
In a recent California case, Friedrichs v. California Teachers Association, plaintiffs argued
that requiring union dues as a condition of employment violated their First
Amendment right to free speech. Had the lawsuit been successful,
California would have become a “right to work” state, barring agency-shop agreements and "fair share fees." After the death of Justice Scalia, however, the Supreme Court
issued a 4-4 decision in the case. With no majority holding, California “fair share fees” were safe. Plaintiffs have already filed a
petition for rehearing asking the Supreme Court to reconsider the case when a
new, ninth Justice is confirmed.
