Even the Obama NLRB Can’t Swallow Union Lawyers’ Anti-Right to Work Argument

(Pending anti-Right to Work litigation filed by Harvard Professor Ben Sachs [pictured above] and a team of union lawyers assumes monopoly-bargaining privileges are worth nothing to union bosses. But even President Obama’s radical National Labor Relations Board knows that’s not remotely true. Image: Harvard Law Today)

In four lawsuits now pending in two different federal circuits and in the West Virginia and Wisconsin state court systems, union lawyers are making novel and audacious claims they hope will become a “doomsday” weapon against all statutory bans on compulsory union dues and fees.

The two federal lawsuits aiming to impose forced union fees nationwide are being advanced by Harvard professor Ben Sachs, a “go to” lawyer for the union hierarchy. Mr. Sachs is being assisted by a legal team from San Francisco-based Altshuler Berzon, a favorite law firm for union bosses with plenty of forced-dues money at their disposal.

(National Right to Work Legal Defense Foundation attorneys have already submitted supporting briefs to defend state Right to Work laws in three of the four cases, and will soon do so in the fourth case.)

The core Big Labor strategy in all these cases is to persuade courts to “reinterpret” the Takings Clause found in the Fifth Amendment of the U.S. Constitution and in analogous state constitutional provisions in a way that would strike down all 26 state Right to Work laws and derail all future efforts to eliminate the forced payment of union dues as a job condition.

Even in light of the long record of the U.S. Supreme Court’s and other federal courts’ acceptance of far-fetched claims by union lawyers in order to uphold statutes authorizing monopolistic unionism, the Sachs litigation can only be regarded as a judicial “Hail Mary” pass.

Clearly, union officials have decided that a “Hail Mary” play is what they need.

Over the past four-and-a-half years, four states have enacted Right to Work laws. A majority of states now protect employees from forced unionism. National Right to Work Committee members helped lead the charge.

Despite all of its forced union dues-derived wealth and political clout, Big Labor has become less and less effective at blocking Right to Work protections in the legislative arena in recent years.

Since early 2012, Indiana, Michigan, Wisconsin, and West Virginia have enacted Right to Work statutes. And the first three of these are heavily industrialized states of the sort where Big Labor propaganda long claimed such laws could never be enacted.

Moreover, several more states — including Montana, Colorado, New Mexico, Missouri, Kentucky, Pennsylvania, and New Hampshire — are now poised to prohibit compulsory union financial support over the course of the next few years.

Big Labor sees a chance to kill Right to Work before it is enacted in even more states. Naturally, union kingpins are jumping at the opportunity.

Unfortunately for the union brass, the anti-Right to Work arguments Ben Sachs has concocted have never been persuasive.

The constitutional “reinterpretation” he advocates is possible only if the judiciary first accepts his and and his allies’ claim that the government-granted monopoly privilege to represent union members and nonmembers alike at the bargaining table is worth exactly nothing to Big Labor. Few if any disinterested observers of how union officials go about their business would concur.

And just recently, a major new and almost certainly unexpected problem for Sachs and his team has emerged: Even President Barack Obama’s National Labor Relations Board (NLRB) appointees are now on the record admitting union monopoly-bargaining privileges are a “thing of value.”

On March 30, the Obama NLRB ruled 3-0 that bosses of Local 720 of the International Alliance of Theatrical Stage Employees (IATSE) may not use the “exclusive” hiring hall they operate to discriminate against employees who live in a Right to Work state and exercise their freedom not to join or bankroll Local 720.

The IATSE Local 720 ruling, in which Chairman Mark Pearce, an ex-union lawyer, and member Lauren McFerran, a protégé of retired Big Labor U.S. Sen. Tom Harkin (D-Iowa), participated, entirely upheld an earlier decision by NLRB Administrative Law Judge Kenneth Chu. (See the link below to read the whole ruling.)

Judge Chu explicitly recognized that monopoly-bargaining privileges are a “thing of value” for Big Labor. And he also recognized that the value is “sufficient compensation” for any expenses union bosses might incur while wielding those privileges over employees in Right to Work states who exercise their legal prerogative not to join or bankroll an unwanted union.

In short, Kenneth Chu and the three Obama-appointed NLRB members who fully concurred with his decision are telling Ben Sachs and other union lawyers who are trying to destroy Right to Work laws that their core contention is wrong.

Sachs et al and their Big Labor clients remain free, of course, simply to add IATSE Local 720 to the host of other NLRB and federal court precedents that they insist must be overturned as they seek to impose forced union dues and fees on employees nationwide. But the fact is, their path to victory in their judicial crusade against Right to Work laws has gotten much more steeply uphill as a consequence of  IATSE, Local 720, AFL-CIO, CLC (Tropicana Las Vegas, Inc.).