Right-to-Work Law Upheld by Appeals Court in Wisconsin

by | September 19, 2017

By Ed Treleven

A state appeals court panel on Tuesday joined a federal appeals court earlier this summer in upholding Wisconsin's right-to-work law, finding that it is not an unconstitutional taking of property from unions.

The three-judge panel of the Wausau-based state District 3 Court of Appeals, led by Judge Mark Seidl, overturned a Dane County circuit judge's finding from April 2016 that the 2015 law, sometimes called Act 1, is unconstitutional.

"The benefits of exclusive representation correspond to a duty to represent all employees in the bargaining unit fairly, including non-members of the union who will pay nothing for representative services," Seidl wrote. "Act 1 does not deprive compensation for those mandated services. The law merely prohibits anyone from conditioning a person's employment on the payment of monies designed to cover the costs of performing that duty of fair representation."

Milwaukee lawyer Frederick Perillo, who has been lead attorney for three unions who sued to overturn right-to-work, said Tuesday morning that he had not yet seen the ruling.

The court's ruling comes on the heels of a decision in July by a federal appeals court panel that also upheld the right-to-work law. A federal judge in Milwaukee had upheld the law in a ruling in September 2016.

The right-to-work law, modeled on similar laws in other states, prohibits unions and employers from requiring that all employees pay fees to join a union, either in membership dues or "fair share" payments for those who opt out of union membership but are still represented by the union.

In the Dane County case, three unions, including the AFL-CIO, sued the state after the law was enacted, arguing that state and federal laws require unions to provide collective bargaining services to all employees in a represented workplace, regardless of whether they pay union dues. That made the state right-to-work law an illegal "taking" over their services, they argued.

Dane County Circuit Judge William Foust, who has since retired, found the law to be unconstitutional and banned it from being enforced, but the state appeals court panel restored enforcement of the law about a month later while it considered the state's appeal of the case.

In the panel's ruling, Seidl wrote that the right-to-work law "doesn't 'appropriate, transfer or encumber' money contained in the unions' treasuries. Similarly Act 1 does not require labor organizations to provide services to anyone."

"The unions may be required to expend resources to represent employees in a bargaining unit who do not pay fees or dues to the union," Seidl wrote, "but the result does not constitute a taking. Rather, Act 1 merely precludes the unions from requiring non-member employees to pay fees designed to cover the costs of performing the duty of fair representation."

The appeals court ordered the case returned to the circuit court for dismissal.

(c)2017 The Wisconsin State Journal (Madison, Wis.)