Here & Now

Attorney Representing Unions Explains Right-To-Work Ruling

A DANE COUNTY JUDGE HAS STRUCK DOWN WISCONSIN’S RIGHT TO WORK LAW WHICH PREVENTS A COMPANY AND A UNION FROM SIGNING A CONTRACT THAT REQUIRES ALL WORKERS TO PAY UNION DUES. THE STATE HAS PROMISED AN APPEAL. AND WE’LL HEAR FROM THE ATTORNEY GENERAL IN JUST A MOMENT. BUT JOINING US NOW IS ATTORNEY FRED PERILLO, WHO JOINS US FROM MILWAUKEE. HE REPRESENTS THE PLAINTIFFS IN THIS CASE, MACHINISTS LOCAL LODGE 1061, UNITED STEELWORKERS DISTRICT 2 AND WISCONSIN AFL-CIO. THANK YOU FOR YOUR TIME TODAY.

FRED PERILLO:

THANK YOU.

ZAC SCHULTZ:

NOW IN THIS CASE THE JUDGE AGREED WITH YOUR AGRUMENT THAT FORCING A UNION TO REPRESENT AND NEGOTIATE FOR WORKERS WHO WEREN’T PAYING UNION DUES IS AN UNCONSTITUTIONAL TAKING. WHAT DOES THAT PHRASE MEAN?

FRED PERILLO:

OKAY. THE TAKINGS CLAUSE IS THE PART OF THE CONSTITUTION THAT SAYS THE GOVERNMENT CAN’T TAKE YOUR PROPERTY OR FORCE YOU TO PROVIDE SERVICES TO SOMEONE ELSE WITHOUT WHAT IS CALLED JUST COMPENSATION.

ZAC SCHULTZ:

AND WERE YOU SURPRISED THAT THIS ARGUMENT WON? BECAUSE WE’VE HEARD THIS HAS FAILED IN A LOT OF OTHER STATES IN WHICH RIGHT TO WORK HAS BEEN PASSED.

FRED PERILLO:

THIS ARGUMENT HAS REALLY BEEN USED ONLY ONCE BEFORE IN INDIANA ABOUT TWO YEARS AGO. INDIANA LAW IS QUITE A BIT DIFFERENT FROM WISCONSIN LAW, SO THIS WAS NOT A SURPRISE TO US. WE THOUGHT IT WAS A GOOD ARGUMENT.

ZAC SCHULTZ:

ARE YOU BASING THIS ON THE WISCONSIN CONSTITUTION AS OPPOSED TO THE U.S. CONSTITUTION?

FRED PERILLO:

THAT IS CORRECT. THIS IS WISCONSIN LAW.

ZAC SCHULTZ:

SO GOING FORWARD, THE JUDGE STILL HAS TO MAKE SOME DECISIONS ABOUT WHETHER THIS WILL BE A PERMANENT INJUNCTION. WHETHER HE’LL STAY OR HOLD HIS DECISION PENDING APPEAL OR WHETHER THIS WILL WIPE OUT THE ENTIRE LAW OR JUST SEVER THIS CLAUSE. WHAT DO YOU THINK IS GOING TO HAPPEN IN THAT MATTER?

FRED PERILLO:

WE’VE ASKED THE COURT TO STRIKE DOWN THE ENTIRE LAW. AND WE’VE SUBMITTED A FORM OF JUDGMENT TO HIM. WE DON’T THINK A STAY IS APPROPRIATE IN THIS CASE. AND WE WOULD OPPOSE A STAY IF A REQUEST IS FILED.

ZAC SCHULTZ:

WHAT DOES THIS MEAN FOR UNIONS IF THERE IS NO STAY, IF THIS LAW IS STRUCK DOWN PENDING APPEAL? WILL THEY BE ABLE TO RUSH INTO NEGOTIATIONS? DO YOU THINK THIS WILL ALTER THEIR WORK LANDSCAPE?

FRED PERILLO:

I THINK IT WILL SET THE CLOCK BACK TO WHAT THE SITUATION WAS BEFORE ACT 1 WAS PASSED. UNIONS WILL BE FREE TO NEGOTIATE CONTRACTS THAT REQUIRE PAYMENT BY ALL MEMBERS FOR THE SERVICES THAT THEY RECEIVE. AND THEY’LL BE ABLE TO ENFORCE THOSE CLAUSES GOING FORWARD.

ZAC SCHULTZ:

DO YOU EXPECT THAT SOME BUSINESSES MIGHT TRY AND HOLD OFF ON NEGOTIATIONS THINKING, WELL, THE SUPREME COURT IN WISCONSIN WILL EVENTUALLY STRIKE THIS DECISION DOWN, SO WE’LL JUST STALL?

FRED PERILLO:

I DON’T EXPECT THAT. I EXPECT PARTIES TO BARGAIN IN GOOD FAITH, AS THEY ARE REQUIRED TO BY BOTH STATE AND FEDERAL LAW.

ZAC SCHULTZ:

SO THIS GOES TO THE WISCONSIN APPELLATE DIVISION NEXT, BUT THERE’S A CHANCE THAT THE SUPREME COURT COULD STEP IN AND EITHER TAKE IT IF THEY’RE ASKED OR TAKE IT DIRECTLY. DO YOU EXPECT TO WIN AT THE APPELLATE LEVEL?

FRED PERILLO:

WE THINK THAT THIS IS A VERY TRADITIONAL ARGUMENT BASED ON LONGSTANDING WISCONSIN PRECEDENT. SO, YES, WE THINK IT’S AN ARGUMENT THAT SHOULD ESPECIALLY APPEAL TO CONSERVATIVES.

ZAC SCHULTZ:

THE CONSERVATIVES ON THE SUPREME COURT HOLD A 5-2 MAJORITY AT THIS POINT. AND I’VE YET TO FIND A SINGLE PERSON OUTSIDE OF THIS LAWSUIT THAT BELIEVES THAT THEY WOULD ACTUALLY STRIKE DOWN WISCONSIN’S RIGHT TO WORK LAW. WHAT MAKES YOU THINK THEY WOULD STRIKE DOWN ONE OF GOVERNOR WALKER’S SIGNATURE ACHIEVEMENTS?

FRED PERILLO:

I THINK IT’S A LITTLE UNSEEMLY TO SUGGEST THAT THE COURT WOULD FOLLOW AN IDEOLOGICAL AGENDA WITHOUT CONSIDERING THE FACTS OR THE LAW. I THINK THAT IT’S A CONSERVATIVE ARGUMENT ABOUT THE GOVERNMENT NOT BEING ABLE TO TAKE PEOPLE’S PROPERTY WITHOUT COMPENSATION THAT SHOULD APPEAL ESPECIALLY TO CONSERVATIVES.

ZAC SCHULTZ:

IF THIS DOES GET UPHELD BY THE SUPREME COURT, COULD THE LEGISLATURE COME BACK IN THE NEXT SESSION AND ADJUST THE LAW ACCORDINGLY TO TRY AND FIT? OR WOULD THEY NEED A CONSTITUTIONAL AMENDMENT, IN YOUR OPINION, TO CHANGE THIS UNCONSTITUTIONAL TAKING ARGUMENT?

FRED PERILLO:

I DON’T KNOW WHAT THE LEGISLATURE WILL DO IN THE FUTURE. AS LONG AS WISCONSIN REQUIRES UNIONS TO PROVIDE SERVICES TO NONMEMBERS AND FORBIDS THEM FROM RECEIVING PAYMENT, IT’S GOING TO RUN AFOUL OF THE CONSTITUTIONAL PROHIBITION ON TAKINGS. I DOUBT THAT WISCONSIN WOULD AMEND ITS CONSTITUTION TO TAKE THAT PROVISION AWAY.

ZAC SCHULTZ:

AND HAVE ANY OF YOUR UNIONS THAT YOU’RE REPRESENTING TRIED TO ENTER INTO NEGOTIATIONS NOW THAT THEY’VE WON THIS ROUND?

FRED PERILLO:

SOME OF THEM ARE IN NEGOTIATIONS NOW. AND SOME HAVE CONCLUDED CONTRACTS THAT THEY MAY TRY TO REOPEN. THE FUTURE IS UNWRITTEN.

ZAC SCHULTZ:

ALL RIGHT. WELL, THANK YOU FOR YOUR TIME TODAY. WE APPRECIATE IT, SIR.

FRED PERILLO:

THANK YOU.