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Labor Takings Game

Unions say they have a constitutional right to workers’ money.

Wall Street Journal Review & Outlook
June 2, 2016

Unions have been losing members and political clout as more states (26 so far) pass right-to-work laws, and now Big Labor is fighting back with a legal strategy to use the Fifth Amendment to take money from workers whether the workers agree or not.

In federal lawsuits filed in Idaho and Wisconsin, unions are claiming that letting workers opt out of union membership and thus not pay dues or fees violates the Constitution’s Takings Clause. The Fifth Amendment says “private property [shall not] be taken for public use, without just compensation.” According to the unions, forcing them to represent the interests of non-union members who don’t pay dues amounts to a state taking against them without just compensation.

In other words, the alleged “taking” isn’t the union grabbing a chunk of a worker’s paycheck without individual consent. It is that right-to-work laws take dues money that union officials say is theirs. This is the Takings Clause turned upside down.

Right-to-work laws have been around since the 1940s, and the National Labor Relations Act explicitly allows open-shop arrangements in which workers may choose whether to join a union and pay dues. Section 14(b) says no portion of the law shall be construed as authorizing “agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

The Supreme Court has reinforced this principle, ruling in Davenport v. Washington Education Association in 2007 that “unions have no constitutional entitlement to the fees of nonmember-employees.” And in Sweeney v. Pence in 2014, the Seventh Circuit Court of Appeals found that the union is “fully and adequately compensated by its rights as the sole and exclusive member at the negotiating table.”

All of this makes the union strategy a long shot, but labor is betting on a new era of progressive legal activism. A single federal judge could send the case to appellate courts increasingly dominated by President Obama’s appointees. The case could then reach the Supreme Court, which might have a pro-labor progressive majority.

The progressives who dominate today’s law schools believe the Constitution is whatever they say it is, so don’t be surprised if this logic begins to prevail in the Obama-appointed courts.