With more state legislatures looking to continue the trend of passing right-to-work laws forbidding unions from requiring non-members in the bargaining units they represent to pay any fees for their services, unions have taken their cases to the court system in an attempt to reverse the situation by using an argument that the laws constitute an illegal “taking” from the unions, the specifics of which I focused on in my previous blog.
However, this legal theory has had only limited success so far, and with a radically different administration about to come to power, the likelihood of its success going forward is murky at best.
In this second part of a two-part blog series, I turn back to Fred Perillo, a partner with The Previant Law Firm in Milwaukee, and Jessica Kastin, a partner with the employer-side law firm Jones Day in New York City, to discuss these issues.
Mixed Success Rate So Far
Currently, labor unions are challenging state-level right-to-work laws in the Wisconsin and West Virginia state court systems, as well as in federal district courts in Wisconsin and Idaho.
While the Wisconsin state trial court ruled in favor of the unions, the state appealed and successfully persuaded the Wisconsin Court of Appeals to stay the trial court’s decision, and the case is still going through the appeals process. In addition, a West Virginia state court sided with the unions by issuing an injunction blocking the state’s recently passed right-to-work law from going into effect (W. Va. AFL-CIO v. Tomblin, W. Va. Cir. Ct., No. 16-C-959, temporary injunction 8/11/16).
Meanwhile, recent cases in federal district courts have so far been successful for the states, with both the Eastern District of Wisconsin and the District of Idaho rejecting union claims that the states’ prevention of unions collecting fees from non-members were unconstitutional “takings” under the Fifth Amendment. Both cases are expected to be appealed.
Kastin notes that in these federal cases, the unions challenging the right-to-work laws asserted Fifth Amendment claims based largely on Seventh Circuit Chief Judge Wood’s federal Takings Clause argument in her dissent to the court’s decision upholding the Indiana right-to-work law.
The Seventh Circuit majority in that case, however, “argued that the Indiana law did not take property from the unions, but merely restricted the unions’ right to collect fees for its services. It also noted that unions are justly compensated under federal law by their role as exclusive bargaining representative with the employer,” Kastin explains.
However, Perillo argues that the issue is not yet settled law, as the Seventh Circuit is the only federal appeals court to hear such as case, and the specific “takings” clause issue was only mentioned in dicta by the majority over a strong dissent and not actually presented for decision in that case.
Effectiveness of Takings Clause Argument Still Unclear
Both Perillo and Kastin agree that while the results so far are mixed, it is still too early to say whether the takings clause argument will end up being a viable one in the long term.
Kastin points out that the reliance on the takings clause in the labor context is a non-traditional assertion of the protection which originates with the Fifth Amendment’s prohibition on the government taking private property for public use without justly compensating the private property owner. “Application in the labor realm is awkward because of the backdrop of the National Labor Relations Act and the system of union elections, the statutory duty of fair representation and employees’ freedom of choice with respect to union representation,” Kastin states.
Perillo, meanwhile, is a bit more confident in the viability of the takings clause argument, saying that it is a generally sound argument, with success dependent on the jurisprudence of the various states. “The core argument – that the government cannot impose representation duties while simultaneously prohibiting unions from collecting any compensation from the people who receive those services – is sound under the federal Takings Clause as well as takings jurisprudence in several states,” Perillo says.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)