By: Thomas W. Mackenzie and Kristofor L. Hanson<\/p>\n
In a decision issued September 19, 2017, the Wisconsin Court of Appeals upheld as constitutional Wisconsin\u2019s so-called \u201cRight to Work\u201d law (Act 1), which outlawed mandatory union membership as a condition of employment.<\/p>\n
Prior to the law becoming effective on March 11, 2015, the International Association of Machinists District 10, the United Steelworkers District 2, and the Wisconsin AFL-CIO filed an action in Dane County challenging the constitutionality of Act 1.\u00a0 The Unions\u2019 theory was that because unions are required to fairly represent all employees covered by a collective bargaining agreement, a law prohibiting unions from receiving just compensation for those services constitutes an unlawful \u201ctaking\u201d under the Wisconsin constitution.\u00a0 Dane County Circuit Court Judge C. William Foust agreed with the Unions, concluding that requiring Unions to represent non-members without compensation constituted a \u201ctaking\u201d and threatened the Unions\u2019 \u201cvery economic viability.\u201d<\/p>\n
The State Attorney General\u2019s Office appealed Judge Foust\u2019s decision to the Wisconsin Court of Appeals. The Court of Appeals reversed Judge Foust\u2019s decision, concluding that Unions have no constitutional entitlement to the fees of non-members.\u00a0 The Court found that Act 1 did not preclude Unions from receiving just compensation for the services provided to non-members; it merely precluded the Union from collecting those fees from the non-members themselves.\u00a0 In other words, Unions will have to look to other sources (e.g. union members) to fund the duty of fair representation owed to members and non-members alike.<\/p>\n
The Court\u2019s decision is not surprising.\u00a0 Wisconsin became the 25th<\/sup> state with a \u201cRight to Work\u201d statute.\u00a0 That number has climbed to 28 states since Wisconsin\u2019s enactment of the law.\u00a0 These provisions have withstood similar constitutional challenges in other forums.\u00a0 The Unions have the right to appeal to the Wisconsin Supreme Court but, given the current composition of that Court, success will be hard to find.<\/p>\n