What is NFIB Doing to Protect Right to Work Laws?

Date: March 21, 2017

We all know how aggressive labor unions can be in advancing their agendas. So it should be no surprise that they are fighting with all their might to strike-down lawfully enacted Right to Work laws throughout the country. The unions continue to throw-up kitchen-sink arguments—hoping against hope—that something will stick.

But of course, we can’t sit back and do nothing. To be sure, a state court Judge recently issued an injunction blocking enforcement of West Virginia’s Right to Work law. And meanwhile, union lawyers are now asking the Seventh Circuit Federal Court of Appeals to reverse a decision, that it issued only a few years ago, upholding Indiana’s Right to Work law. In this case, the unions hope to invalidate Right to Work in two states in one fell swoop.

As with the West Virginia case, the unions argue that Wisconsin’s Right to Work law unconstitutionally takes private property without providing compensation. Now this is a curious argument because—if anything—Right to Work laws protect workers from a taking of their hard-earned wages. Yet somehow the unions assume that they have a constitutionally protected entitlement to a constant stream of revenue from workers who may not want anything to do with the union.
To put it mildly, that’s preposterous. Indeed, it would be the equivalent of a business claiming an entitlement to a constant stream of revenue from a customer, even after expiration of a service agreement. Obviously, nothing is taken in a law that simply protects consumers or workers from being forced to pay for services that they didn’t want in the first place.

Of course, we’ve devoted a lot of energy into advancing small business rights under the Takings Clause. For that matter, we’ve argued in the past—and will continue to argue—that in the proper case it is possible for a business to challenge to economic regulation under the Takings Clause. For example, we filed in Horne v. USDA to make clear that farmers cannot be forced to surrender portions of their crops as a condition of lawfully engaging in the market. And we would argue, just the same, that the government would violate the Takings Clause if its regulations should condition one’s right to use a specific property on a requirement to give-up another property interest. But in this case, the Union’s goes well beyond anything that our takings jurisprudence would allow.

In a nutshell, the unions argue that Right to Work laws effectively take property by prohibiting them from recouping money that they must expend in providing services under their collective bargaining agreements. But as we pointed out in our recent amicus filing, the unions cannot claim a taking here because they’ve voluntarily chosen to enter those agreements. In other words, there is no reason to think that the government is taking anything whatsoever from the unions. Notwithstanding Right to Work laws, the unions maintain total control over all their assets, and even the choice as to whether to enter agreements that may bind them to provide services to union members, or non-union members. Simply put, this is yet another frivolous kitchen-sink argument.

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