Are Right to Work Laws Unconstitutional?

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.