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Dane County Trial Court Strikes Down Wisconsin’s Right to Work Law

In the Summer 2015 edition of the Messenger, I discussed Wisconsin’s new Right to Work Law and several concepts that form the backbone of national private sector labor law. A brief reprise of two of those concepts is useful to understanding the Dane County Circuit Court’s recent decision holding Wisconsin’s right to work law to be unconstitutional, International Association of Machinists District 10 v. State of Wisconsin, 2015 CV 628, (April 8, 2016), and the issues now before the appellate courts.

Concept #1: Exclusive Representation (h3)

The doctrine of exclusive representation underpins the National Labor Relations Act, enacted in 1935: “if a majority of the employees in a defined section of a workforce vote in favor of a particular union to represent them, that union is required by law to represent all the workers in the bargaining unit[—]supporters and nonsupporters, members and nonmembers, alike.” Sweeney v. Pence, 767 F.3d 654, 671 (7th Cir. 2014) (Wood, Ch. J., dissenting) (citing 29 U.S.C. § 159(a) and Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 760-61 (1961)).

Only the majority representative can represent the employees; no minority employee organization may do so. Nor, for that matter, may individual employees represent themselves to engage in individual bargaining with the employer.

Concept #2: Duty of Fair Representation (h3)

The second important concept is the duty of fair representation, a creature of judicially created law:

Consequences flow from the union’s status as the exclusive representative of all members of the bargaining unit. The most significant is what is known as the duty of fair representation .… The duty of fair representation requires the exclusive bargaining representative (i.e., the union) to “serve the interests of all members [of the bargaining unit] without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.”

Vaca v. Sipes, 386 U.S. 171, 177 (1967); Sweeney, 767 F.3d at 672 (Wood, Ch. J., dissenting).

For example, when a non-union member employee, who is a member of the bargaining unit represented by the union, is fired, the union is legally obligated to represent the employee. Local union officers or salaried union staff assist the employee in preparing and filing a grievance, and advocate for the employee through a multi-step process. If the union and the employer cannot settle and the grievance has merit, the union must file for arbitration, pay for the cost of the advocate at the hearing (often retaining an attorney to try the case), as well as the cost of a court reporter, transcript and half of the arbitrator’s fees. The cost to the union can easily exceed $10,000. And those costs to represent a non-member must be borne by the union’s dues-paying members.

IAM District 10 Scrutinizes Long-Standing Principles of Labor Law (h3)

These two legal principles form the context for the argument made by the plaintiffs in IAM District 10. The plaintiffs essentially presented the court with this question: “How can it be that the Constitution allows the state government to compel us to provide our services to non-members who pay us nothing for them?” Dane County Circuit Court Chief Judge William Foust answered that question as follows: “It cannot be. It is governmental taking without compensation in violation of Article I, Sec. 13 of the Wisconsin Constitution.”

Judge Foust found that the service provided by unions, like the service of lawyers or doctors, is a legally protectable property interest. The court found further that Wisconsin’s right to work law, prohibiting non-members from having to pay their fair share for union services, was a “taking” of the unions’ property interests for which the state had not provided just compensation. The judge granted the plaintiffs’ motion for summary judgment and denied the state’s request for a stay of its order enjoining enforcement of the Right to Work Law. The Court of Appeals, District III, however, granted a stay on May 24, 2016, ruling that the record did not support a finding that the unions would suffer substantial harm if the stay were granted.

Sweeney Anticipates an Opposing Argument (h3)

The takings analysis was first articulated by Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit in her dissent in Sweeney, a decision which upheld Indiana’s 2012 right to work legislation which was enacted. The response of the majority in Sweeney to Judge Wood’s dissent suggests the framework for the argument that will be presented to the Wisconsin appellate courts as they hear the state’s appeal in IAM District 10. The federal court in Sweeney noted that the power inherent in exclusive representation was itself just compensation for unions’ obligation to represent nonmembers. It also observed that the dissent failed to account for the fact that the right to work law was enacted by the state, but the duty of fair representation was a federally imposed obligation. It posed this rhetorical question: why wouldn’t the proper remedy be to strike down the federal law imposing on all unions the duty of fair representation.

Stay tuned: this is just heating up.        

Timothy Hawks

Shareholder at Hawks Quindel, S.C.
Timothy E. Hawks is a Milwaukee employment and labor law attorney representing workers and unions throughout Wisconsin.