Court battle could be uphill fight for Wisconsin unions should lawmakers pass right-to-work

Wisconsin union leaders may not get much help from judges if they file a legal challenge to Republicans' right-to-work provisions, as courts have done little to weaken similar measures in other states.

The proposal, which prohibits unions from reaching deals with businesses that require workers to pay fees to the unions as a condition of employment, is on a fast track for approval in the Republican-controlled Legislature, with Gov. Scott Walker promising to sign it. That leaves the courts as a last-ditch option for unions and other opponents.

But legal challenges to recently enacted right-to-work laws in Indiana and Michigan have lost in both state and federal courts. The Wisconsin proposal — which is up for a public hearing Tuesday — closely mirrors laws in those states, making a successful lawsuit here unlikely, said Paul Secunda, a law professor who coordinates Marquette University's labor and employment law program.

In fact, no one has ever successfully won a legal challenge against right-to-work, Secunda said.

"These laws have existed for over 60 years," he said Monday. "You can file all the lawsuits you want but the presumption is going to be that the law is going to be good."

Twenty-four states already have right-to-work laws. Supporters see them as a way to help the economy, spur business and give workers the freedom to choose whether they want to pay union dues. Opponents, including public and private-sector unions, say the laws are just another way for Republicans to weaken unions that favor Democrats and help businesses reduce salary and benefit expenses.

For organized labor in Wisconsin, the new bill marks the second blow of a one-two punch that began with Walker's plan to strip nearly all public workers of their union rights. Republicans passed that measure in 2011 despite massive, round-the-clock demonstrations at the Capitol that attracted tens of thousands of people and went on for weeks. The protests and an ensuing recall attempt helped Walker become a national conservative star who is now likely to run for president.

Union leaders planned rallies Tuesday and Wednesday at the Capitol to protest the right-to-work bill. It's unclear how large these protests might be, but Secunda said he doesn't expect the same energy demonstrators displayed during the public union restriction protests. Only 11.7 percent of Wisconsin workers belonged to unions last year, according to the U.S. Bureau of Labor Statistics. A nationwide Gallup poll done in August showed 71 percent of respondents said they would vote for a right-to-work bill; 22 percent said they would not.

With passage all but certain, unions' only recourse would be lawsuits. But that looks like a losing proposition, too.

Last year the Indiana state Supreme Court rejected two challenges to that state's right-to-work law that alleged the law unconstitutionally required labor unions to provide services to nonunion workers without compensation. The 7th Circuit U.S. Court of Appeals last year also rejected arguments that federal labor law pre-empts Indiana's law.

A state judge in Michigan earlier this month dismissed a union lawsuit alleging that state's right-to-work is invalid because state police temporarily closed the Capitol while the Legislature debated the bill in 2012.

U.S. District Judge Stephen Murphy III last year ruled federal law doesn't trump that state's right-to-work law in a challenge from the Michigan AFL-CIO, calling right-to-work a valid exercise of state power. Murphy refused to dismiss other parts of the lawsuit, however; a hearing is set for July.

Myranda Tanck, a spokeswoman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said Wisconsin Republicans modeled their bill on Michigan's and Indiana's laws to ensure the legislation would withstand legal muster.

"Right to Work is not an idea that is untried or untested," Tanck wrote in an email.

Phil Neuenfeldt, president of the Wisconsin state AFL-CIO, said Monday that he didn't know what legal options may be available for right-to-work opponents.

Secunda said that short of massive strikes unions have no way of stopping the bill from becoming law.

"It's looking very bleak," he said. "... States that have gone right-to-work have never gone back. Labor's last shot, as far as I can see, is just pulling out the stops and withholding their work from their employers."