Right to Work laws, which prohibit requirements that workers pay union dues as a condition of employment, have been passed in twenty-eight states and the territory of Guam. Since my last blog on this subject, dated July 24, 2017, unions challenging the constitutionality of state Right to Work law have received setbacks from three appellate courts.

First, as I reported on July 24, the United States Court of Appeals for the Seventh Circuit rejected two union arguments on July 12, 2017: (1) that Wisconsin’s private-sector Right to Work law is preempted by the National Labor Relations Act to the extent that the state law prohibits forcing workers to pay dues or fees to unions for collective-bargaining purposes, and (2) that, if not thus preempted, the law effects an unconstitutional taking of union property without just compensation in violation of the Fifth Amendment[1]. The union plaintiffs in that case petitioned for rehearing en banc, arguing that rehearing should be granted because rehearing en banc of the circuit’s own earlier decision in Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014) (2-1 decision), which upheld Indiana’s “substantively identical” Right to Work law, had been denied only by a 5-5 vote. However, on September 1, 2017, the Seventh Circuit denied the petition for rehearing in the Wisconsin case, noting that “[n]o judge in active service has requested a vote on the petition for rehearing en banc.”

The second blow to union plaintiffs was struck on September 15, 2017, when the West Virginia Supreme Court reversed a Kanawha County Circuit Court preliminary injunction against enforcement of West Virginia’s Right to Work law. The Supreme Court majority held “that the unions failed to show a likelihood of success in their legal challenge to the law’s constitutionality” on either their claim that the law “violates their constitutional right to freedom of association” or their argument that it “is an unconstitutional taking of union property.” The court noted that “the constitutional freedom of association argument proffered by the unions is nearly identical to one rejected by the United States Supreme Court” in Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co. 335 U.S. 525 (1949). And, it explained that the “unions have no protected property right that the Legislature has taken through the adoption of” the Right to Work law. Chief Justice Loughry was even more emphatic in his concurring opinion, stating that the “circuit court’s issuance of an injunction . . . was not merely imprudent, but profoundly legally incorrect,” because the unions’ “action fails on all fronts.” The preliminary injunction was dissolved and the case remanded for a final resolution on the merits, with the circuit court encouraged to act with “celerity.”[2]

The third union setback in these cases occurred on September 19, 2017. The Circuit Court for Dane County, Wisconsin, had granted judgment that Wisconsin’s private-sector Right to Work law effectuates an unconstitutional taking of union property in violation of the Wisconsin Constitution. The Wisconsin Court of Appeals now has reversed that judgment, holding that the Right to Work law “does not take property within the meaning of the Wisconsin Constitution,” but “merely prohibits employers from requiring union membership or the payment of fees as a condition of employment.”[3]

Updated brief summaries of these and other cases attacking the constitutionality of state Right to Work laws are available from the National Right to Work Legal Defense Foundation.

[1] Operating Eng’rs Local 139 v. Schimel, 863 F.3d 674 (7th Cir. 2017), aff’g 210 F. Supp. 3d 1088 (E.D. Wis. 2016).

[2] Patrick Morrisey v. West Virginia AFL-CIO, no. 17-0187 (W.Va. Sept. 15, 2017).

[3] Machinists District 10 v. Wisconsin, No. 2016AP820 (Wis. Ct. App. Sept. 19, 2017).