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Unions’ ‘unconstitutional taking’ argument on right-to-work dripping with irony

By   /   February 26, 2016  /   News  /   No Comments

MADISON, Wis. – Arguing in Dane County Circuit Court Thursday that Wisconsin’s Right-to-Work law constitutes an “unconstitutional taking,” three unions that filed a lawsuit against the state seem to have overlooked the irony of their argument.

The complaint was filed in March 2015 by the Wisconsin AFL-CIO, the International Association of Machinists District 10 and the United Steelworkers District 2 in Menasha – a day after Gov. Scott Walker signed the legislation into law.

Wisconsin became the 25th right-to-work state last year, ending compulsory union dues in the private sector.

The unions argue the law fails the constitution because labor groups are forced to represent employees who have exercised their right-to-work rights to not pay union dues. That has cost big labor big money.

“That’s an unconstitutional taking,” said Milwaukee attorney Frederick Perillo, who represents the unions in the lawsuit.

Watchdog.org file photo

‘TAKING’ LIBERTIES: Unions argued this week in Dane County Court that Wisconsin’s right-to-work law is an unconstitutional taking.

Mark Mix, president of the Virgina-based National Right to Work Legal Defense Foundation, said the irony is pretty deep.

“The union chose to be a monopoly bargaining agent,” Mix told Wisconsin Watchdog Friday on the Jay Weber Show, on 1130 WISN in Milwaukee. “The unions adopt this exclusive bargaining privilege because it gives them total power over the bargaining unit… And then they come back here in this court and say, ‘This is an illegal taking.’

“The question has been settled many times before and I expect, hopefully, we’ll get the same outcome we got in Indiana and elsewhere.”

A similar case in Indiana went to the state Supreme Court. In that case, the court said unions had not proven they were forced to represent workers who declined to pay union dues.

Other courts in Michigan, federal appeals courts and the U.S. Supreme Court all have come down with rulings declaring the constitutionality of right-to-work laws.

But it could take years to settle the question in Wisconsin, depending on appeals. And that will cost taxpayers plenty.

RELATED: Wisconsin’s Right-to-Work law goes on trial

The Right to Work Legal Defense Foundation and the Wisconsin Institute for Law & Liberty have intervened in the case on behalf of four union shop employees who have opted out of paying union dues.

“They objected to forced unionism,” Mix said. “Their desire was to safeguard their rights and refrain from paying dues to an entity they did not belong to. Prior to the right-to-work law, they still have to pay up to 100 percent of dues to keep their jobs.”

Perillo, as noted in Wisconsin State Journal story, argued it’s expensive for unions to represent the interests of workers in negotiations, grievances and other matters, and under state and federal law, unions established in workplaces must provide those services even to workers who are not union members.

“Literally, the state is forcing the unions to take property from A and give it to B,” Perillo said.

But union dues pay for more than just contract negotiations. A big share of dues is marked for political purposes – causes some employees don’t agree with.

“The arguments have all been made before that somehow this private organization, that this is somehow illegal to allow Wisconsin citizens to exercise their associational and free speech rights, as this is somehow an injustice on organized labor and their monopoly power.”

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M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.