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Are Right to Work Laws Unconstitutional?

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Are right-to-work laws an unconstitutional taking of property? That’s what unions and their lawyers are arguing in Wisconsin and West Virginia, both states that have recently passed such law.

Eleven state labor unions filed petitions in Kanawha Circuit Court Monday challenging the state’s new “right-to-work” law as an illegal taking of union property and resources.

“First and foremost, it’s unconstitutional because it’s an illegal taking of property without due process,” said Josh Sword, secretary treasurer of the West Virginia AFL-CIO, one of the 11 plaintiffs.

The lawsuit, and a motion for a preliminary injunction to block the law from going into effect July 1, contends that the Workplace Freedom Act (SB 1) is intended to discourage union membership by “enabling nonmembers of unions to get union services for free.”

Vetoed by Gov. Earl Ray Tomblin, but enacted into law by override votes with no Democratic support in the Republican-controlled House of Delegates and Senate, the legislation allows employees in union shops to opt out of paying union dues.
The lawsuit contends that amounts to an illegal taking of unions’ property and resources, since state and federal labor laws require unions to negotiate contracts and provide representation to the non-union employees at “considerable cost” to the unions.

“Requiring unions to provide services to free riders while simultaneously prohibiting unions from charging for those services necessarily takes union funds and directs them to be expended on behalf of third parties,” the lawsuit states.

The lawsuit contends one intent of the law is to discourage employees from joining unions.

“Why, the employee would ask, should I pay for something that the law requires be made available to me for nothing,” the petition states. “Such a circumstance would — naturally and predictably — seriously burden a union’s ability to recruit and retain members.”

In April, a Wisconsin circuit court judge overturned that state’s right-to-work law in a case that similarly argued the law amounts to an unconstitutional taking of union property and resources. That ruling has been stayed, pending an appeal to the Wisconsin state Supreme Court.

“This is ultimately going to go to the U.S. Supreme Court, without question,” Sword said of the challenges to right-to-work laws. “The general question of whether it’s an illegal taking of property without due process will be ultimately decided by the U.S. Supreme Court.”

This indeed does seem headed up the court ladder. We have a very good idea what a court with Scalia would have ruled on such a case. Once again, the fate the Court is the single most important reason to vote for Hillary Clinton this fall, even if you hate her. It’s the only responsible for choice for anyone who cares about unions at all.

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  • TM1

    This indeed does seem headed up the court ladder. We have a very good idea what a court with Scalia would have ruled on such a case. Once again, the fate the Court is the single most important reason to vote for Hillary Clinton this fall, even if you hate her. It’s the only responsible for choice for anyone who cares about unions at all.

    But…but…not dime’s worth of difference! DR. JILL STEIN SHES A DOCTOR ’16!!

  • Linnaeus

    IANAL, but I can imagine that an argument in response to the unions’ case is that they can remedy the free rider issue by negotiating members-only contracts.

    • Cassiodorus

      Current federal law prohibits that though. That the state could remedy the taking by that change doesn’t make the current law valid.

      On the other hand, I’m not sure what’s the rationale for requiring the union to bargain for all employees. I assume there is some harm involved since I never hear pro-union people pressing for the change, but I’ve never known what the harm is.

      • Joseph Slater

        The Right-to-Work folks do argue that unions could, under current law, negotiate “members only” agreements. While pro-union author Charlie Morris has suggested that is allowed under current law, I think it’s very unlikely the NLRB or courts would buy that argument.

        Exclusive/majority representation has always been the model in U.S. law (although not so much in Europe). The rationale from the pro-union side is that you need bigger unions to have more clout with the employer — why would an employer care if a union representing 15% of its riveters went on strike? The decline of unions in the private sector has made a number of academics question this model, but I don’t see it changing in the foreseeable future.

        • los

          “Workers Choice” from the arse of the beast, all as one pdf, but wrapped in an html condom: https://archive.is/sBwT4

      • Simeon

        Current federal law also permits states to pass laws requiring that unions bargain for all employees.

        If we grant that a court rules that it’s unconstitutional to require unions to negotiate for non-members (and it may be a stretch to expect the higher courts to do this), then that court may resolve the issue by either voiding RTW (requiring all employees to pay union dues) or permitting members-only contracts.

      • Murc

        Current federal law prohibits that though.

        Wait, does it?

        My understanding is that the closed shop (have to be a union member to be hired) is illegal, but that it was legal to both have members-only contracts and a mix of union and non-union employees.

        • Nick056

          That is incorrect. It is legal for states to have closed shop employers, or to pass right to work laws, which is a phrase used to describe a situation where people do not have to pay dues to be an employee. However, typically those folks are still in the same community of interest as Union employees, so they are covered by the collective bargaining agreements and enjoy a right to fair representation by the union. Thus the “free rider” problem, which anti-union folks typically describe as the result of letting people choose to be in a union of not.

          • Joseph Slater

            The closed shop, which means employers agree only to hire those who are already union members, is illegal everywhere. In the public sector, it violates the First Amendment; under the NLRA, it’s barred by statute and states can’t make it legal.

            The most that is legal in either the public or private sectors is what is called the agency shop. Under the agency shop, members of union bargaining units may be obliged to pay that portion of dues that goes to activities related to collective bargaining. Even this is illegal in those states that have chosen to be right to work jurisdictions.

            In the private sector, states could not choose to adopt members only bargaining. In the public sector, states could, but at the moment none have.

          • Murc

            That is incorrect. It is legal for states to have closed shop employers,

            As Joseph said, while I’m unsure on other points I know for a fact that isn’t true. The closed shop has been illegal nationwide for longer than my parents have been alive. The union shop is legal, but not the closed shop.

            I suspect you may have reversed them. I do that from time to time.

            • Joseph Slater

              Not sure about the lifespan of your parents, but the Taft Hartley amendments to the NLRA in 1947 made the closed shop illegal.

      • DAS

        If union negotiated contracts are reserved for union members, the employer will negotiate very good contracts with the first few workers who leave the union. Other workers, seeing they could do better without the union, leave the union, thus breaking the union.

        • cpinva

          “If union negotiated contracts are reserved for union members, the employer will negotiate very good contracts with the first few workers who leave the union.”

          much like a Ponzi scheme, only the first few workers will get those (short-term) nice contracts, everyone else will be offered a shitty contract. people will talk, the word will get around, and those people will go back to the union. you see, employers, being by nature greedy, can’t help but stab themselves in the foot, it’s what they do.

          • Cassiodorus

            Yeah, I assumed that part. I was curious if there was some consequence beyond that I wasn’t thinking of.

          • los

            after union is gone, isn’t “employer” normal practice to drag out for years the election to bring back a union?

      • ggrzw72

        Federal law doesn’t prohibit members-only contracts. It’s just that employers aren’t required to bargain with a union unless it’s the employees’ “exclusive representative” and an exclusive representative is required represent nonmembers.

    • ThrottleJockey

      Whatever it is, I’m happy to be seeing an innovative approach to confront these issues.

  • Hercules Mulligan

    I can’t remember if this has already (long ago) been covered on this blog, but while I applaud the substantive results I’m very, very worried about any ruling that promotes the use of the Takings Clause to undo government policy. In 99.9% of cases the phrase “taking of property” will be used by the right to weaken economic and environmental regulation.

    • Cassiodorus

      Doesn’t that already occur in a lot of jurisdictions anyway?

    • Fake Irishman

      See my comment below. Scott did cover this a few months back. I don’t blame the people in Wisconsin and WV for trying, but I do tend to agree with your view here.

    • Joseph Slater

      Yeah, the liberal/left side of things isn’t going to benefit from more robust readings of the Takings Clause. Now, of course, one could imagine courts applying principles inconsistently to favor unions and not hurt other liberal causes, but that’s arguably overly-optimistic.

    • Dilan Esper

      To concretize this fear somewhat, many governmental policies have free riders. For instance, if government develops a shopping center, local businesses may benefit with additional traffic to their businesses without contributing to the project. Can the tenants or developers of the project then allege that their property (the expected future business of the mall) was “taken” by the nearby businesses?

      If any time anyone free rides because of something the government did, there’s an action for taking property, that is just going to have huge unintended consequences.

      I don’t agree that ANY ruling that promotes the takings clause is problematic. The clause exists, just compensation is a real thing, and as written in the Constitution, there’s a public use requirement (though there isn’t much left of it). But certainly creative, Richard Epstein-style regulatory takings theories are extremely problematic.

      • los

        if government develops a shopping center, local businesses may benefit with additional traffic to their businesses without contributing to the project. Can the tenants or developers of the project then allege that their property (the expected future business of the mall) was “taken” by the nearby businesses?

        There are some differences between your example and RTF (Right To Freeload).
        Your example involves an operating value of real estate which conforms to “takings tradition”. RTF “takings” are labor (time amounts of a lifetime), not property.

        I’ve never heard of government-built shopping centers, but architects and contractors bid for retail facilities within redevelopment projects.
        Except when the redevelopment is a failed ‘boondoggle’, usually the old center loses sales, thus could claim a “takings” quantity based on sales diverted to the new center. Government redevelopment is the action of government “takings”.

        The old center also could claim that they pioneered the region as sales location, so that the new center also benefits from customer traffic established by the old center. Government action subsidized the “takings” by the new center.

    • twbb

      Yup. For example, the current litigation over the Clean Power Plan.

    • los

      yes, because that’s the politically correct context…

      • los

        Hercules Mulligan says:
        99.9% of cases the phrase “taking of property” will be used by the right to weaken economic and environmental regulation.

  • CrunchyFrog

    “Right to Work”

    It’s still really impressive how the right wing has managed to define the language of the debate. “Pro-Life”, “Estate Tax” or “Death Tax”, “Tax Relief”, and so on.

    It’s anti-abortion, certainly not pro-life. They don’t give a rat’s ass about whether the fetus has pre-natal or post-natal health care or food after birth. In fact, the anti-abortion party is staunchly against any government program to provide those services.

    It’s an inheritance tax. It’s tax benefits for the rich. And it’s lower pay for workers.

    • TM1

      This is right, the sons of bitches will wail and cry crocodile tears about “unborn children” one moment then in the next breath rail against “welfare moms” and their “spawn” (yes, they’ve been known to use that term)

      Fuck them all.

      • cpinva

        not to mention want to apply capital punishment to a certain segment of criminals.

    • CP

      I’m not sure if this exactly falls into your category, but I still think spreading the “liberal media” meme and getting most people to swallow it – for the corporate-owned entities that sold the Iraq War and couldn’t be bothered to fact-check things as simple as Palin’s “death panels” – is possibly their biggest success in defining the terms of the debate.

      Also one of the most damaging notions out there. It means that even those who sense the media’s bullshitting them have no idea where to turn or how to course-correct – if you realize the media’s lying but have been trained to think it’s “liberal,” your first reaction’s going to be to turn to self-described conservative or centrist outlets, which will just bury you even deeper in bullshit.

  • Fake Irishman

    See Scott here.

    His conclusion:

    I’m sure Foust means well, but in all honesty his regulatory takings argument needs to be put on a barge on Lake Michigan and set on fire, which I assume the appellate courts will do. It’s a bad law, but in this case it’s a bad law that needs to be changed by electing a Democratic legislature and governor, or by amending the state constitution to actually forbid right-to-work laws

    • Cassiodorus

      I’m not sure what’s the problem with the argument. The reasoning can be used to support right-wing crank positions, but it’s not like conservatives won’t promote those positions no matter what we do.

      • Dilan Esper

        That’s not an argument you can make with respect to setting legal precedents.

        We have a common law system where case results are explicitly reasoned from other precedents. Thus, endorsing bad reasoning in support of a good result is fraught with danger.

        • Cassiodorus

          Yeah, but that requires assuming they won’t just develop the reasoning in the cases doing what they’d use this case to support.

          • Bill Murray

            sure, but doesn’t this mean, this sort of case should wait until such a time that the reasoning is developed?

      • Scott Lemieux

        The reasoning can be used to support right-wing crank positions, but it’s not like conservatives won’t promote those positions no matter what we do.

        1)Except that, in fact, Epstein-style regulatory takings arguments are generally not taken seriously even by reactionary judges. Sure, libertarian cranks will keep promoting them, but that doesn’t meant that they will inevitably get somewhere. Liberals taking this crap seriously doesn’t help.

        2)It’s a really shitty argument, even in cases where it produces a liberal result.

    • rea

      I think it is distinguishable from the anti-environment regulatory taking argument. RTW doesn’t merely limit use of physical property; it requires the union to work for nonmembers without compensation. Hell, it’s involuntary servitude.

  • LeeEsq

    I’d argue that freedom of association is better basis than the Talkings Clause to fight right to work.

    • cpinva

      “I’d argue that freedom of association is better basis than the Talkings Clause to fight right to work.”

      I’d argue that this is a good alternative position, in the event the Takings position doesn’t succeed at the appellate level. the rightwing argument would be that the union (and its members) aren’t being required to “associate” with non-members, merely provide them the same services/benefits as dues paying members. they don’t have to invite them to the annual union Christmas party.

      • Joseph Slater

        The problem with forced association is lack of State action sufficient to trigger the First Amendment. Union security clauses are not mandated by labor statutes, the statutes merely permit them. They only exist as a product of negotiations between two private parties.

    • DrDick

      That was my immediate reaction, but IANAL and have no expertise in these issues.

    • Uh, sure…except that conservative jusrists has spent 200 years making sure that the first amendment doesn’t apply to unions. Which is what made the Friedrichs case such a confounding boondoggle.

      • Joseph Slater

        Friedrichs was a public-sector case, and everyone agrees that the Constitution applied because a state actor is the employer. Of course, there is disagreement on what the First Amendment does and does not require re union security clauses.

  • Bruce Vail

    It’s the only responsible for choice for anyone who cares about unions at all.

    Well, no, but I get what you are aiming at.

    I don’t think Hillary gives a shit about unions, either in general, or in relation to any particular union. Did anybody see the video where she was booed at the NEA convention for endorsing more charter schools? The teachers, for christ’s sake, are her stringest supporters! (This was a dog whistle, I think, to her Silicon Valley money — ‘See, I’m like Bill. I can triangulate off the dumb shit proles, too!’)

    Bill and Hillary are Ivy Leaugers at heart. When it come to the short strokes, she is always on their side, not ours.

    • junker

      Wow, is this a grossly incorrect characterization of what she actually said.

      “When schools get it right, whether they’re traditional public schools or public charter schools, let’s figure out what’s working and share it with schools across America,” she said to audible boos from the audience. “Rather than starting from ideology, let’s start from what’s best for our kids.”

      “When it comes to education, let’s do whatever works” seems to me like the blandest possible thing you could say. But, don’t take my word for it, let’s hear what NEA President Lily Eskelsen Garcia thinks about it:

      But Eskelsen did not take umbrage at Clinton’s remarks: “There are some successful charter schools,” she said. “Let’s look at what makes them work.”

      But hey, I appreciate that you are reasonably upfront with the fact that you’re totally deranged.

      (This was a dog whistle, I think, to her Silicon Valley money — ‘See, I’m like Bill. I can triangulate off the dumb shit proles, too!’)

  • bernard

    IANAL, but this sounds like a really ridiculous argument to me.

    A law requiring someone to do something is not a “taking” by any reasonable interpretation. Most adult residents of the US are required to fill out income tax forms, at a cost of time and, often, money. Is that a taking? I don’t think so.

    Besides, leaving issues of fairness aside for now, what is the actual marginal cost to the union of including non-members in the contract, at least as far as wages and benefits go? It looks like a number very close to zero to me.

    • Joseph Slater

      The cost of representing such free riders in grievances and arbitrations is significant. As are the administrative costs of complying with agency fee payer rules under Beck, etc.

      Also, even as to negotiations, the larger the group the union must negotiate for, the more the same percentage raise will cost the employer, so it is a burden to the union.

      • los

        The unsustainable burden degraded the level of the compensation-negotiating service.
        This historically recorded incurred loss implies a larger secondary additional “taking”.

  • Webstir

    Oh, this is good stuff Erik. Seeing as how I live in Idaho, a “right to work state” (and btw, I’ve always been fascinated by how conservative laws can predictably be counted on to employ euphemism to cover their nefarious agendas), it will be interesting to see if/how the law could be retroactively applied. Seriously, all the libertarian types around here will absolutely come unglued.

    • There is already an Idaho case moving its way up to the Supreme Court. You guys may be the ones to kill RTW for the rest of us.

  • Matt McIrvin

    It seems to me that libertarians ought to oppose these laws; they’re an abridgement of freedom of contract, aren’t they?

    • burnspbesq

      It would seem that way if libertarians actually lived the beliefs they profess. They’re about as good on that score as Catholic women.

      • (((Malaclypse)))

        They’re about as good on that score as Catholic women.

        /boggle

  • burnspbesq

    So:

    What, exactly, is the “private proprty” that’s being taken?

    Is it being taken for “public use?”

    What is “just compensation?”

  • This will go to the Supreme Court.

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