WILL Press Release | Unions Wrong Again on Right to Work “Window”

Law is still in effect across the state

April 13, 2016 – Milwaukee, WI – Unions are once again claiming that the ruling of a single judge in Dane County creates a “window” for everyone else around the state to ignore the law.  In a public statement, Stephanie Bloomingdale, secretary treasurer of the Wisconsin AFL-CIO, claimed that after Judge William Foust declared Right to Work unconstitutional, unions around the state can once again negotiate so-called “fair share” agreements with employers.  That’s not how the law works.  Not until an appellate court declares a law unconstitutional is it invalidated statewide.

The law has always been clear that a ruling in a circuit court case (like Dane County) affects only the parties to that case.  If a circuit court judge strikes down a law, its ruling applies only to the parties to that case.  Because a circuit court opinion lacks any precedential value, the law is still in effect as to everyone else in the state.  There is no “window” for anyone other than the parties in the Dane County case to violate the right to work law, which remains in effect until and unless the court of appeals strikes it down.  That is not likely. 

Unions tried the exact same thing with Act 10.  When Judge Colás (also in Dane County) declared Act 10 unconstitutional, unions claimed that municipal employees around the state could still engage in full collective bargaining.  They were wrong.  Only Madison Teachers could do so.  We raised this same warning then – that there was no “window” for everyone else to avoid Act 10.

Some local units of government ignored our warning.  We sued to stop them on behalf of local taxpayers, and in every case other circuit courts agreed that there was no “window” and they were not bound by Colás’ decision.  In every case, the unions and local units of government either lost to a judge’s ruling or conceded that their contracts violated Act 10 and were invalid.

The court of appeals and the supreme court also agreed with us.  The court of appeals “rejected out of hand” the idea that a Dane County decision was binding statewide.  Later, the supreme court ruled that Judge Colás had impermissibly extended the scope of his ruling to nonparties after an appeal was taken, implicitly ruling that the original ruling affected only the parties.  Even WERC, which was a party to the Act 10 case, was permitted to hold recertification elections for unions while the case remained pending.

Nor does the fact that state officials may be enjoined from enforcing the law make a difference.  A circuit court cannot foreclose the rights of those that who were not before it or who are not in “privity” with those who are. Any employees whose employer or bargaining representative (other than the unions in this case) tries to force them to pay dues can still file a lawsuit and obtain a ruling that they are violating the Right to Work law.  They could obtain a ruling in another court – or even in Dane County in front of a different judge – that requires state officials to enforce the law against them and their employer and union.  Employees whose wages are deducted in violation of Right to Work could file class action lawsuits to recover those funds.

There is no window for unions to ignore Right to Work.  If any unions and employers – other than the ones who are party to Judge Foust’s case – try to negotiate contracts that require nonmembers to pay dues or other payments, they will be breaking the law. They will be inviting litigation.


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