Right to Work Laws in the Courts — An Update
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Right to Work laws, which prohibit requirements that workers pay union dues as a condition of employment, have been enacted in twenty-eight states and the territory of Guam. Since my last blog on this subject, dated February 22, 2017, the constitutionality of another state Right to Work law has been upheld by a federal appellate court. On July 12, 2017, the United States Court of Appeals for the Seventh Circuit rejected two union arguments: (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 to keep their jobs, 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 Seventh Circuit followed its 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. The court noted that the union “points to no intervening developments in statutory, Supreme Court, or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney’s validity.”[2].
In the meantime, other union lawsuits challenging the constitutionality of the Idaho, Kentucky, West Virginia, and Wisconsin Right to Work laws continue, with all but West Virginia’s law still enforceable. Oral argument in the state court case against the Wisconsin private-sector law was held in the Wisconsin Court of Appeals on May 2, 2017, and the State’s appeal of the preliminary injunction against West Virginia’s law is set for September 5, 2017, in the West Virginia Supreme Court.
Updated brief summaries of these cases are available from NRTW.
[1] Operating Eng’rs Local 139 v. Schimel, No. 16-3834, 2017 WL 2962896 (7th Cir. July 12, 2017), aff’g 210 F. Supp. 3d 1088 (E.D. Wis. 2016).
[2] Schimel, slip op. at 4-5
San Diego City Attorney
Jan Goldsmith has been an attorney since 1976 specializing in business litigation. He was appointed San Diego Superior Court Judge in 1998 and retired in December of 2008 to assume the office of San Diego City Attorney. Mr. Goldsmith spent his first 6 years on the Bench handling criminal and civil trials and his final years assigned to an independent civil calendar.
Prior to his appointment, Mr. Goldsmith served three terms in the California State Assembly representing the Northern San Diego City District stretching from Mira Mesa to the Escondido border. During his career in the Assembly, he held various leadership positions including Majority Floor Leader, Member of Rules Committee, Chairman of the Banking and Finance Committee and Vice Chairman of Judiciary. Jan has taught as Adjunct Professor of Law at three San Diego law schools on subjects including municipal government law and prosecution of political crimes. He also served as Mayor of Poway.
Mr. Goldsmith graduated magna cum laude from University of San Diego in 1976. He is married to Christine, and they have raised three children, now ages 28, 25 and 20.
Vice President & Legal Director, National Right To Work Legal Defense Foundation
Raymond J. LaJeunesse, Jr., is Vice President and Legal Director of the National Right to Work Legal Defense Foundation, a non-profit legal aid organization. He was the first Staff Attorney employed by the Foundation and has more than forty-five years of experience helping workers in litigation in federal and state courts and administrative agencies over the abuses of compulsory unionism.
Mr. LaJeunesse has argued four cases in the United States Supreme Court. Those cases include Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991), which limited the purposes for which compulsory union fees collected from public employees may lawfully be spent; Air Line Pilots Ass’n v. Miller, 523 U.S. 866 (1998), which established that unions cannot compel nonmembers to exhaust union-established remedies before going to court to challenge compulsory union fees; and Marquez v. Screen Actors Guild, 525 U.S. 33 (1998), in which the Court recognized that unions must notify employees that they can satisfy the “membership” requirement of “union shop” agreements by just paying fees for union bargaining activities and need not join and pay full dues to keep their jobs. He also was lead attorney in Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992), in which more than $8.3 million in compulsory agency fees was recovered from the American Federation of State, County and Municipal Employees for a class of 57,000 nonmembers.
Mr. LaJeunesse is the author of several published articles about labor law, has testified before Congressional committees several times, and was an Advisor on the Transition Team for Labor- Related Agencies, Office of the President-Elect, in 1980-81 and a legislative aide to a member of the Virginia state legislature. He is a Vice Chairman of the Federalist Society’s Labor and Employment Law Practice Group and has spoken or debated at the Society’s National Lawyers Convention and at many Lawyers and Student Chapters on such topics as Right to Work laws, compulsory unionism arrangements, the misuse of union dues for politics, union organizing tactics (“card check” vs. secret-ballot elections), and the future of the union movement.