Can the Courts Strike Down Right-to-Work?

AP Photo/Wisconsin State Journal, Steve Apps

Members of the Carpenter Union Local 1146 in Green Bay participate in a rally against Wisconsin's "right-to-work" law. 

Last week, in a move that’s as likely to baffle union activists as it is to encourage them, a West Virginia judge struck down key portions of the state’s “right-to-work” law.

The Kenawha County judge’s ruling may amount to no more than a temporary hiccup in West Virginia Republicans’ war to destroy unions. But it’s another example of how hotly provisions of the 1947 federal Taft-Hartley Act are being contested in the courts as it becomes clearer that the anti-union impact of the law has contributed to an era of massive inequality that threatens our democracy.

West Virginia’s “right to work” law was rammed through on a party-line vote prior to 2016’s presidential election and the recent statewide teachers strikes. It had survived a Democratic gubernatorial veto and a previous injunction based in part on its ridiculously sloppy drafting. Last week, however, siding with a coalition of unions that included the building trades, Teamsters and Mineworkers, Judge Jennifer Bailey ruled the law  “unnecessarily and unconstitutionally imposes an excessive burden on Plaintiffs’ associational rights,” and that the goal of letting workers opt out of union membership “can be, and have been, fully accomplished without taking the additional steps of prohibiting agency fees, and giving free riders something for nothing.”

Anne Marie Lofaso, a professor of law at West Virginia University, describes Bailey’s ruling as “an extremely well-done decision that holds together and reflects some excellent lawyering for the union plaintiffs.”

In many respects, the West Virginia decision is a replay of a briefly encouraging moment in April of 2016 when a Dane County judge struck down Wisconsin’s recently enacted “right-to-work” law. That decision was predictably reversed by a Republican-dominated higher state court one year later.

Of the more recent West Virginia decision, Losafo says “Unless the [state] Supreme Court is willing to strip West Virginians of the individual liberties that our [state] constitution guarantees,” which, she notes are stronger than the federal constitution’s Bill of Rights,  “this will be a very difficult decision to overturn.”

Not that West Virginia’s Supreme Court can be counted on to act in a nonpartisan manner. The Republican state legislature has been busy impeaching the entire elected Supreme Court for the past couple of months in a bizarre soft coup. The five-person judicial body had tilted towards the Democrats, but is likelier to favor GOP lawmaking if this unprecedented power grab proves to be successful.

As in Wisconsin, the West Virginia unions’ argument was first asserted by Chief Judge Diane Wood of the Seventh Circuit in a 2014 federal case Sweeney vs. Pence. In a dissent, Wood argued that it is actually unclear what the 1947 Taft-Hartley legislators meant by “right-to-work”—that is, whether they were allowing states to ban mandatory fees or just mandatory union membership. Forcing unions to expend resources on non-members without any financial compensation, she further argued, represented an unconstitutional “taking” under the Fifth Amendment.

The West Virginia decision is based on parallel due process language in the state’s constitution, meaning that even if the decision stands, it holds no precedent anywhere else in the country. But if made in a federal case, it’s a legal argument that could overturn “right-to-work” laws around the country. A federal decision embracing Judge Wood’s logic would make the section of Taft-Hartley that even allows states to pass “right to work” unconstitutional, and all the state laws that followed it null and void.

To be clear: This “takings” deus ex machine came as a dissent in a case that labor lost, setting a precedent within the Seventh Circuit—which covers Illinois, Indiana, and Wisconsin. Still, any federal court outside of those states could strike down all of the “right to work” laws in its jurisdiction, thereby swiftly sending the issue to the Supreme Court.

Perhaps the speed with which such a case would hurtle towards Trump’s Supreme Court is why the West Virginia unions decided to challenge the “right-to-work” law in state court rather than in the federal Fourth Circuit. Similarly, a once-promising case in the liberal Ninth Circuit, Operating Engineers Local 370 v. Wasdenwas quietly abandoned after Hillary Clinton lost the 2016 election. The hyper-partisan treatment of workers rights at all levels of the judiciary cannot be overstated.

At a time of rampant economic inequality that is stressing the foundations of our democratic institutions, many experts—even some conservatives—are noting, however belatedly,the decline of unions as a key factor in the end of shared prosperity.

In this context, the way that decades of pro-business case law singles out and restricts the rights of unions is ripe for challenge. Some judges (some of the Democrats, at least) are reconsidering decades of anti-union case law. And smart unions are looking for ways to break through these cracks in the wall.

“Right-to-work” laws arguably aren’t even the part of the Taft-Hartley Act most responsible for the labor movement’s long slow decline in membership and power. The Act also banned solidarity activism—or what the law dryly refers to as “secondary activity”—that is, the right of workers to extend a workplace dispute to a company that is not their direct employer but is nevertheless essential to their employer’s business. This, too, is finally being challenged by unions as an unconstitutional restriction on First Amendment rights.

Last month, the Service Employees International Union (SEIU) filed a Ninth Circuit challenge to the Taft-Hartley Act’s ban on secondary activity. Because almost all janitorial work is subcontracted to small, often fly-by-night employers, the long-term strategy of SEIU’s successful “Justice for Janitors” campaign has been to bring their union demands to the landlords who have the real power to raise wages. 

In SEIU vs. NLRB, a Bay Area janitors local picketed the building in which they work to protest low pay and sexual harassment. When the subcontractor fired a group of workers who participated in the action, the National Labor Relations Board refused to reinstate them, ruling they lost the protections of the Act by picketing a “secondary” employer. In a statement to Bloomberg Law SEIU contends, “By construing the NLRA to prohibit non-coercive picketing, leafleting, and speech simply because the workers asked the managers and tenants of the building where they worked to help them improve the unjust working conditions in that building, the Board engaged in content-based discrimination in a manner that cannot survive modern First Amendment scrutiny.”

The legal assumption of coercion has been used to carve unions out of many First Amendment protections—even as the free speech rights of corporations have been greatly expanded. SEIU is making a point that should be obvious to anyone who isn’t Neil Gorsuch or Samuel Alito. If there’s no physical restraint, no threats of violence, then where is the coercion? What is wrong with workers talking with others workers about how poorly they’re being treated on the job and asking them to withhold their labor or consumer dollars from an unfair boss in solidarity?

“Coercion” has been left so unchallenged in the courts that Trump’s NLRB General Counsel appointee, Peter Robb, thinks he can ban unions from inflating a giant inflatable rat because he can argue that its presence at any union protest is inherently coercive. (Or actually because, as he’s been heard to say he “hates” it.) But with a proper regard for the First Amendment, it could be deemed “content-based” discrimination against workers’ free speech.

That would open yet another avenue to challenge to the nation’s anti-union labor law regime as grossly unequal and constitutional. To be sure, waging any fight for union rights in the courts if not without its risks. But not fighting for workers’ constitutional rights, it should now be clear, will only lead to more billionaire-funded Republican attempts to roll back our few remaining legal labor protections.

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