By Ed Treleven
A Dane County judge declined to issue a temporary injunction Thursday that would have put Wisconsin's new right-to-work law on hold, finding that there wasn't adequate proof that unions would suffer irreparable harm without the injunction.
Circuit Judge William Foust said there was "some chance" that the Wisconsin AFL-CIO and two other unions would succeed on the merits of their lawsuit challenging the law, which took effect on March 11. But while that requirement needed to order the temporary injunction may have been met, another was not.
"Irreparable harm is speculative," Foust said. Foust made his decision after hearing about two hours of arguments by lawyers Thursday morning.
In a statement, the AFL-CIO called the decision "another injustice for working people."
"A temporary injunction is intended to halt immediate irreparable harm," Wisconsin AFL-CIO President Phil Neuenfeldt said. "Make no mistake, Right to Work will harm all of Wisconsin's workers by driving down wages and weakening safety standards across all industries and workplaces."
Last week the AFL-CIO and two other labor organizations sued the state, Gov. Scott Walker, Attorney General Brad Schimel and other officials claiming that the right-to-work law is an unconstitutional taking of property from unions, through union services given to non-union workers who are no longer required to pay dues as a condition of employment.
State Department of Justice lawyers responded that the law doesn't take union property, and that similar laws have been upheld by courts in other states.
The lawsuit will now proceed toward a decision on its merits, with a formal answer to the lawsuit or a motion to dismiss it to be filed by the state within 45 days.
Foust said the question of whether the law constitutes an unconstitutional taking from unions, by requiring that they perform services for workers who are now not required by the law to pay dues, was closely related to a question of involuntary servitude.
But he said he was not yet in a position to state an opinion on the law, and that the law enjoys a presumption of constitutionality that is difficult to overcome.
But irreparable harm to the unions, Foust said, based on the record he had before him, was speculative. The record lacked an accounting of how much work is done by unions on behalf of dues-paying members as opposed to non-paying "fair share" employees.
"The bottom line is, while there may be reasonable grounds to think that the plaintiffs can succeed on the merits," Foust said, "I have questions about whether there's an adequate remedy at law and I'm not persuaded that there is irreparable harm in allowing Act 1 to go into effect as scheduled."
(c)2015 The Wisconsin State Journal (Madison, Wis.)