Dane County Circuit Court Judge Strikes Down Wisconsin’s Right-to-Work Law, Appeal Anticipated

Friday, April 8, Dane County Circuit Court Judge C. William Foust struck down 2015 Wisconsin Act 1, Wisconsin’s Right-to-Work law. Under 2015 Wisconsin Act 1,

“No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:

  1. Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
  2. Become or remain a member of a labor organization.
  3. Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.
  4. Pay to any 3rd party an amount that is in place of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of, or employees represented by, a labor organization.”

Wis. Stat. s. 111.04 (3).

In his ruling, Judge Foust agreed with the plaintiffs, the International Association of Machinists Local Lodge 1061, the United Steelworkers District 2, and the Wisconsin State AFL-CIO, that Act 1 resulted in an unconstitutional taking of the unions’ property. Judge Foust held that under Act 1, unions are still required to provide a service, that is, bargaining on behalf of employees, including non-union employees, and because the non-union employees need not pay for these services, the act took from the unions a legally-protectable property interest without providing just compensation to the unions. In short, Judge Foust agreed with the unions that they have a legal right to a portion of employee wages, regardless of whether the employee is a union member.

Wisconsin Attorney General Brad Schimel notified Judge Foust that the Attorney General will seek a stay of any final ruling, when issued, pending appeal. A stay, if granted, would allow Act 1 to remain in effect during any appeal. Wisconsin Manufacturers & Commerce, a Right-to-Work proponent, characterized Judge Foust’s decision as “an act of blatant judicial activism that will not withstand appellate review” and that “Judge Foust came to the absurd and legally untenable conclusion that labor unions have a property right to the wages of workers.” Similarly, Associated Builders and Contractors of Wisconsin, which also supported Act 1, stated “Judge Foust’s argument for his ruling has been repeatedly rejected by state and federal courts throughout the nation, and I expect our state’s law to be similarly upheld upon appeal.”

Stephanie Bloomingdale, secretary-treasurer of the Wisconsin AFL-CIO, Monday advised Wisconsin unions that thanks to Judge Foust’s ruling, unions can negotiate agreements with employers requiring non-union employee to help pay for a union’s costs to represent workers. The Wisconsin Institute for Law & Liberty, disagreed, stating “[t]hat’s not how the law works. Not until an appellate court declares a law unconstitutional is it invalidated statewide.”

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