Seventh Circuit Upholds Wisconsin 'Right to Work' Law

Author: Marta Moakley, XpertHR Legal Editor

July 13, 2017

On Wednesday, a unanimous three-judge panel of the 7th Circuit Court of Appeals upheld Wisconsin's right to work law, which ensures that employees must not be required, as a condition of employment, to become a member of a union or pay dues to a union they do not belong to. The International Union of Operating Engineers Local 139 v. Schimel (Nos. 16-3736 and 16-3834) decision follows a similar 2014 decision regarding Indiana's "right to work" law, which the appeals court found to be controlling precedent.

Unions often negotiate "union security clauses" in collective bargaining agreements, which require employees to either join the union after they become employed, or, in the alternative, pay fees analogous to union dues (known as a "union shop"). "Right to work" laws render these clauses unenforceable.

Labor organizations have argued against state "right to work" laws on a number of bases, including the National Labor Relations Act's possible preemption of state action on the matter. However, the 7th Circuit analyzed the federal law's legislative history and relevant Supreme Court precedent, and determined that the NLRA does not preempt state "right to work" laws. Other arguments based on unions' Fifth Amendment rights also proved unpersuasive to the appeals court.

Attorney General Brad Schimel praised the decision in a statement, saying "The Constitution does not protect a union's right to take money from non-union members and I'm proud to have defended the rule of law in Wisconsin." The unions may take further action on the case following Wednesday's adverse ruling.

A number of states have passed right-to-work legislation in recent years, with the most recent (Missouri) law taking effect in August.