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In these turbulent times, it is quite amazing how rapidly the fortunes of the political wars can shift, especially on matters of labor law. Earlier this year, the question before the United States Supreme Court in Friedrichs v. California Teachers Association was whether teachers had a constitutional First Amendment right to steer clear of mandatory union membership. During the oral argument it was clear that five members of the Supreme Court believed that the association improperly forced unit workers to contribute to a cause in which they did not believe. Four members believed that the traditional accommodation under Abood v. Detroit Board of Education (1977), made it permissible for the state to distinguish between economic matters for which dues had to be paid, and political matters on which union members could opt out. The cases ended, without a decision in a 4 to 4 vote, after the death of Justice Antonin Scalia. Left standing until another day was the decision in the Ninth Circuit that rejected the First Amendment challenge.
As this matter remains unresolved, a new thunderbolt has come from Dane County, WI where Judge C. William Foust held at the request of three unions that the Wisconsin right-to-work law was unconstitutional because it deprived unions of the property in their own labor without just compensation, “[b]y prohibiting the unions from charging nonmembers who refuse to pay for representation services which unions continue to be obligated to provide by law.”
In reaching this conclusion, Judge Foust first noted that the union was constrained by a duty of fair representation to treat all the workers “without hostility or discrimination,” but what he does not note is that any effort to reach this particular result has proved an abject failure in all cases that do not involve matters of race or sex discrimination. In dealing with economic claims of different workers, be it by seniority or by work classification, there is simply no metric by which anyone can tell whether that duty has been discharged, so that no one who is short-changed can maintain a viable claim.