Tag Archives: Right-To-Work

Seventh Circuit Upholds Wisconsin’s Right-to-Work Law

Contributed by Carlos Arévalo, July 21, 2017

On July 12, 2017, a three judge panel in the seventh circuit unanimously affirmed District Judge J.P. Stadtmueller’s ruling dismissing a lawsuit filed by two International Union of Operating Engineers (IUOE) locals that challenged the validity of Wisconsin’s right-to-work law. Judge Stadtmueller’s dismissal in September 2016 was based on the seventh circuit Sweeney v. Pence 2014 decision that upheld Indiana’s “nearly identical” law.

The Wisconsin law provides that “no person may require, as a condition of obtaining or continuing employment, an individual to…become or remain a member of a labor organization [or] pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.”

gavelbw

Black and white gavel

In Sweeney, the seventh circuit determined that the National Labor Relations Act did not preempt Indiana’s right–to-work law, even if it prohibited the mandatory payment of any dues or fees to unions, and it did not result in a taking in violation of the Fifth Amendment. The court reasoned that unions are “justly compensated by federal law’s grant to [unions] the right to bargain exclusively with…employer[s].”

On this appeal, the IUOE conceded that Sweeney controlled, but argued that it was wrongly decided and should be overturned. The IUOE relied on a strong dissent in Sweeney and the close en banc vote to rehear it. Writing for the panel, however, Judge Joel Flaum rejected these arguments and noted that they were not “compelling reasons” to overturn a recent decision. Judge Flaum also added that the unions failed to direct the court to any intervening development in statutory, Supreme Court, or other intermediate appellate court decision undermining Sweeney’s validity.

The seventh circuit’s decision affirming the Wisconsin’s 2015 law suggests a continuing trend favoring the right-to-work movement at the judicial and legislative levels of government. In February of this year, Missouri enacted its right-to-work law becoming the 28th state with a right-to-work law on the books, closely following Kentucky’s adoption of its own law in January. Opponents in Missouri have sought a referendum seeking to repeal the law, but their efforts suffered a setback when union-led referendum summaries were ruled “unfair and insufficient.” In Kentucky, labor organizations have sued seeking to block the law.

At the federal level, Republican Congressmen Steve King of Iowa and Joe Wilson of South Carolina re-introduced the National Right to Work Act bill (an effort that went nowhere in 2015) in the hope that a Trump administration would approve such legislation. Within a month, Senator Paul Rand of Kentucky introduced similar legislation in the Senate. These bills would amend the National Labor Relations Act and Railway Labor Act to prohibit the use of union security clauses requiring union membership and payment of dues and fees.

Where all of this leads is unclear, but we can be certain of one thing for the near future – this battle will continue to be fought all across the country.

Missouri Has Become the 28th Right-to-Work State

Contributed by Beverly Alfon, February 10, 2017

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

  • Effective date:  August 28, 2017
  • Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
  • What it prohibits:
    • No employee can be required to become or remain a union member as a condition of employment.
    • No employee can be required to pay dues, fees or assessments of any kind to a union (or any equivalent of a dues payment to any charitable organization).
  • Penalties for violations:  Criminal sanctions – a violation is a class C misdemeanor, punishable by a fine of $750 and up to 15 days in jail. Civil sanctions – private parties may obtain injunctive relief, damages and an award of attorneys’ fees.
  • Effect on collective bargaining agreements:  For collective bargaining agreements (CBA’s) entered into before August 28, 2017, the law has no effect. However, the law will apply to any CBA renewal, extension, amendment or modification after August 28, 2017. This will likely jolt Missouri unions to seek contract extensions of existing CBA’s in order to delay the impact of the law.

Unions Continue to Battle

10033780_s

Flag of Missouri

The Missouri AFL-CIO has submitted different versions of a proposed initiative petition to the secretary of state’s office that is aimed at reversing the RTW law. Basically, with enough signatures, it would present the opportunity for Missouri voters to decide in 2018 whether to adopt a constitutional amendment that would protect contracts that require employees to pay union representation fees.

Perspective

Seven of eight states that surround Missouri have existing right-to-work laws, including Kentucky, which passed a right-to-work law last month. The current tally of RTW states includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina,  North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming. Just last week, the New Hampshire senate passed a RTW bill, which is awaiting passage by the state House.

On a federal level, two Republican Congressmen re-introduced the National Right to Work Act last week. The bill would amend the National Labor Relations Act and the Railway Labor Act to prohibit the use of union security clauses which require union membership and payment of dues and fees.

If there was any doubt, this flurry of activity confirms that the right-to-work movement is recharged.

NLRB Weighs In On Dispute Over Kentucky County’s Right-To-Work Laws

Contributed by Julie Proscia and Steven Jados

Last week, the National Labor Relations Board (board) filed a legal brief in an ongoing federal lawsuit over the viability of a multi-part right-to-work law implemented through a county-wide ordinance in Hardin County, Kentucky.  Among other things, the ordinance at issue prohibits the use of union-security provisions in collective bargaining agreements, and also regulates hiring halls, dues check-off, anti-coercion and discrimination provisions, and the penalties for violations of Section 8 of the National Labor Relations Act.  The board’s central argument is that federal law preempts the county’s legislation on those issues.

This action by the board (which is not actually a party to the lawsuit at issue) in support of the plaintiff unions is indicative of the board’s unprecedented and aggressively pro-union agenda.  The underlying lawsuit was filed by the United Auto Workers and other unions in a Kentucky federal district court to challenge the legality of the county’s ordinances.  That said, the board’s brief indicates that this likely will not be a precursor to challenges to right-to-work laws that have been implemented on a state-wide level across the country.  In that regard, the board’s brief references the statutory basis for states’ right-to-work laws, but then argues that that statutory text should not be applied to local government entities for reasons that include the possibility that county-wide legislation could result in a “crazy-quilt” of varying regulations that could make it impossible to administer industry-wide labor agreements.

While the Kentucky district court’s jurisdiction is obviously limited, local governmental bodies around the country are certain to be watching the outcome of this decision, and an opinion favoring Hardin County is likely to spur more legislation of this sort on the local government level all across the country.

Right-to-Work: Who’s Got Next?

Contributed by Beverly Alfon

Despite labor’s historical stronghold in the Midwest – Indiana, Michigan, Iowa, Tennessee and now, Wisconsin – have become Right-to-Work (RTW) states.  Is Illinois next?  What does this mean for employers?

RTW In a Nutshell: Money and Power

In the 25 states that have not passed RTW laws, including Illinois and Missouri, a union security clause in a collective bargaining agreement requires all employees in the bargaining unit to either be a dues/fee-paying union member – or a non-member who pays “fair share” fees.  The battle is over the non-member “fair share” fees which are used to supplement dues cash flow used for, among other things, local and international officer salaries, overhead costs and political lobbying.

In the 25 states that have passed RTW laws, a non-member at a unionized workplace is no longer required to pay any fees to the union – even if s/he is benefitting from union representation.  Financially, RTW is a major blow to unions.  From an organizing standpoint, it is equally damning.  An individual is far less likely to become or remain a union member if s/he can benefit from representation without having to pay.  After all, a union owes a legal duty of fair representation to all individuals in the bargaining unit – regardless of member status.

Proponents of RTW laws argue that they attract new business and promote expansion of existing businesses because of the likely decline of union strength and numbers.  Opponents of RTW laws argue that employee wages, benefits and protections will deteriorate as a result of lower union representation.

The Pulse 

Missouri: Even if the RTW bill before the Missouri legislature fails this year, GOP representatives are celebrating.  Last month, in a 91-64 vote, the House approved a RTW bill.  Despite the possibility of defeat in the Senate and expected veto of Gov. Jay Nixon, the RTW movement has clearly gained significant ground.  It would only take 109 votes in the House to override a veto.

Illinois:  Last month, Gov. Bruce Rauner issued an executive order allowing state employees to opt out of paying union dues.  AFSCME, Illinois AFL-CIO and 25 other unions filed suit last week challenging the executive order.  Meanwhile, Rauner has filed his own lawsuit asking the courts to confirm his position that fair share fees violate workers’ First Amendment rights.

Wisconsin:  Last week, a group of unions filed suit to challenge the recently enacted RTW law.  Notably, union challenges to the constitutionality of RTW laws in Michigan and Indiana have failed.

Kentucky:  Under home rule, in December 2014, Warren County, Ky., adopted a countywide RTW ordinance after it became clear the state legislature was not going to pass a RTW bill.  Since last year, 11 counties have passed local RTW laws, including several along the Tennessee border.

What to Expect Right Now 

Expect an uptick in union activity as unions ramp up “internal organizing” to prove that membership has its benefits.  Frontline management will also likely receive increasing questions from employees about what all of this means.  Now is the time to consider re-training your supervisors and managers about what they can say and do when these discussions arise.  Finally, stay tuned as these legal and legislative battles continue to develop.