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Affluent Investor | April 28, 2017

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Big Labor Tries To Eliminate Right-To-Work By Lawsuit

New York State Supreme Court Building [Wikipedia]

New York State Supreme Court Building [Wikipedia]

If the judge is on your side, you can win a case despite pathetic arguments. So if the cost of losing is near zero and the possible gain from winning is huge, why not launch a suit and see what happens?

That’s the thinking behind a case challenging Idaho’s Right to Work (RTW) statute on the grounds that the state is taking property that belongs to labor unions when it allows workers to keep their jobs even if they don’t pay the dues demanded by the union.

The theory of the suit is that Idaho’s law (and, logically, all other state RTW laws) is unconstitutional because it violates the Fifth Amendment’s provision that private property cannot be taken for public use unless just compensation is paid. As almost everyone knows, that language was included to require the government to justly compensate property owners when their land had to be taken for a public project such as a road or bridge.

But in this day of “living Constitution” jurisprudence, the words of the Constitution mean whatever a judge thinks they should mean, so perhaps the plaintiff union will find friendly judges who agree that when a state allows workers to keep their jobs without paying dues, it has “taken” their “property.”

Still, could any judge take this argument seriously?

Indeed so. In fact, it was actually suggested by a federal judge who was eager to help unions find a winning strategy against RTW. The judge, Diane Wood, who was on the Seventh Circuit panel that heard the legal challenge to Indiana’s RTW statute in Sweeney v. Pence.

By 2-1, the panel rejected the union claims that Indiana’s statute is pre-empted by federal law and unconstitutional because it violates the Contracts and Equal Protection Clauses. Judge Wood dissented, and in her dissent suggested that RTW opponents should instead attack the laws by arguing a Fifth Amendment “taking” theory.

That is exactly what plaintiff International Union of Operating Engineers Local 370 contends in its suit against Lawrence Wasden, the attorney general of Idaho – the law is invalid because it runs afoul of the Fifth Amendment.

The purpose of a RTW statute is to say that workers cannot be fired simply for failure to pay union dues, but union officials do not want anyone to have the right not to pay if he doesn’t think their services are worth the cost, or disapproves of what the union does with the money. They hate losing what they think should be their money when workers exercise their rights under RTW. For many years, they’ve been using some of their dues money to pay lawyers to find a way to force everyone to pay. This is the latest gambit.

(An aside: the other way for unhappy workers to escape from a union they don’t want is through decertification. That entails voting the union out entirely. As Diana Furchtgott-Roth points out in this piece, the law makes it deliberately difficult for workers to exercise that right. Nevertheless, in 2015, enough workers signed decertification petitions to force 185 elections, in which the union was ousted in 113. That refutes the common assertion that unions are always beneficial for workers.)

But why should people believe that any union property has been “taken”?

The argument in a nutshell is that the National Labor Relation Act obligates certified unions to bargain collectively on behalf of all the workers in the bargaining unit and to provide them with “fair representation.” But they receive no compensating payment from workers who decline to pay and yet keep their jobs under RTW. Therefore, because unions must provide services for these workers and the RTW statute allows workers not to pay, those laws “take” union property in violation of the Fifth Amendment.

It’s a weak argument, but one that appeals to judges who want to assist Big Labor.

Logically, the target of the suit should not be the Idaho RTW statute, but instead the provision of the NLRA that compels unions to represent unwilling workers.

Judge Tinder, author of the majority opinion in Sweeney, made that point, writing: “Indiana’s right‐to‐work statute does not “take” property from the Union – it merely precludes the Union from collecting fees designed to cover the costs of per‐ forming the duty. Even supposing the Union could justify its suit by invoking something like the tort doctrine of “concur‐ rent actual causes,” the dissent has not explained why the proper remedy would be to strike down Indiana’s right‐to‐ work statute rather than striking down or modifying the federal law imposing on all unions the duty of fair representation, in right‐to‐work states and non‐right‐to‐work states alike.”

That’s right, and if Big Labor wanted to escape from the allegedly burdensome obligation to represent all workers whether they want union services or not, it could easily get its friends in Congress to propose such a change in the NLRA. A bill liberating unions from the financial “strain” of representing all workers would easily sail through Congress with union backing – but that isn’t what they want. They want labor law to give them more power and control, not less.

Furthermore, the “loss” inflicted on unions by the requirement that they represent all workers is negligible and probably zero in most instances. But no matter what the size of the supposed “taking,” the fact that Local 370 would have to accept the possibility that some workers would decline to pay was something it knew about when it sought to become the exclusive representative of all of them under the NLRA.

Exclusive representation (a privilege bestowed on no other private organization and improperly given to unions) keeps unhappy workers from trying to negotiate their own deals with management, thus improving something that’s exceedingly important to most unions, namely solidarity. That benefit compensates unions for the revenue loss when workers decline to pay dues. Incidentally, it’s perfectly legal for unions to organize and represent only those workers who actually want its services and promise to pay for them.

Local 370’s Fifth Amendment argument is laughable and will probably be rejected by the district judge. That, however, is not where the important battle will take place.

Idaho, you see, is in the realm of the Ninth Circuit Court of Appeals and many of the judges on that circuit are notoriously prone to deciding cases in accordance with their “progressive” beliefs. Big Labor expects that, on appeal, it will draw a three-judge panel with a majority that’s sympathetic to unions and hostile to free choice for workers. A decision against Idaho’s law would also invalidate the RTW statutes in two other states in the circuit, Nevada and Arizona.

And then, even if the union loses in the Ninth Circuit, there is the Supreme Court. In the near future, there could be a “progressive” majority on the Court, ready to help unions since they’re regarded as allies in the “progressive” fight to subject more and more of American life to centralized control.

Would the Supreme Court strike down RTW laws across the nation (at present, 26 states have enacted them), contrary to the will of those state legislatures, not to mention the obvious legislative intent of the Taft-Hartley Act? That would be an astounding piece of judicial arrogance, but I wouldn’t bet against it.

 

Article originally published on Forbes.com.

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