July 13, 2017 – A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit yesterday upheld Wisconsin’s right-to-work law, concluding it was nearly identical to the Indiana right-to-work law the Seventh Circuit upheld in 2014.
The Wisconsin right-to-work law, enacted in 2015, bars agreements that require workers in unionized workplaces to join the labor union or pay a fair share of union dues, even if they still have union representation as non-union workers.
The Indiana right-to-work law, enacted under then-Indiana Gov. Mike Pence, does the same thing, and a three-judge panel (2-1) upheld the Indiana law three years ago, concluding the law is not preempted by the National Labor Relations Act (NLRA).
The NLRA prohibits employers from discouraging membership in labor unions but – as the Indiana decision concluded – does not authorize agreements requiring union membership, as a condition of employment, if state law prohibits such agreements.
“We also determined that the enactment of Indiana’s law did not effect a taking in violation of the Fifth Amendment,” wrote Judge Joel Flaum, referring to the court’s decision in Sweeney v. Pence, 767 F.3d 654, 676 (7th Cir. 2014).
“Although the NLRA requires unions to provide fair representation to non-paying members of the bargaining unit, the unions are justly compensated by federal law’s grant to [unions] the right to bargain exclusively with … employer[s].”
The International Union of Operating Engineers (IUOE) challenged the Wisconsin law, but a federal district court dismissed the case, noting the Indiana decision controlled.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The Wisconsin petitioners had highlighted a strong dissent from Chief Judge Diane Wood in the Indiana case, and also that a petition to rehear the case en banc had failed by a 5-5 vote, suggesting the Seventh Circuit Court of Appeals is dead split on the issue
But in Int'l Union of Operating Engineers Local 139 v. Schimel, No. 16-3736, (July 12, 2017), the three-judge panel unanimously ruled that Sweeney still controls.
“IUOE points to no intervening developments in statutory, Supreme Court, or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney’s validity,” Judge Flaum wrote. “In sum, IUOE does not provide any compelling reason to revisit Sweeney, and we decline to do so.”
