The result could be that all right-to-work laws are nul­li­fied — and soon­er than you might imagine.

Union sup­port­ers had rea­son to cheer ear­li­er this month when Wis­con­sin Gov. Scott Walker’s hat­ed ​“right to work” law was over­turned by a Dane Coun­ty Cir­cuit Judge . Unfor­tu­nate­ly, the deci­sion is all but cer­tain to be over­turned by Wisconsin’s con­ser­v­a­tive Supreme Court . But con­tained in the case is a line of ques­tion­ing over the con­sti­tu­tion­al­i­ty of the right-to-work con­cept that has qui­et­ly been play­ing out in fed­er­al courts.

“RTW” takes mon­ey and pow­er from unions, but is that a ​‘tak­ing?’

The log­ic that the Wis­con­sin judge leaned upon in his deci­sion has its ori­gins in a fed­er­al case called Sweeney v. Pence, in which unions made an unsuc­cess­ful attempt to over­turn Indiana’s recent right-to-work statute on con­sti­tu­tion­al grounds. Although the unions them­selves did not raise this argu­ment in the 2014 case, Chief Judge Diane Wood argued in her dis­sent that ​“right-to-work” pro­vi­sions vio­late the U.S. Constitution’s Tak­ings Clause.

“This is a law,” says Mar­quette Law Pro­fes­sor Paul Secun­da, ​“that com­pels one pri­vate par­ty to pro­vide ben­e­fits to anoth­er pri­vate par­ty with no com­pen­sa­tion.” He is con­vinced that right-to-work laws, which per­mit rep­re­sent­ed work­ers to quit their union and stop pay­ing fees while simul­ta­ne­ous­ly oblig­at­ing that union to con­tin­ue to spend resources rep­re­sent­ing them, are an uncon­sti­tu­tion­al ​“tak­ing.”

If the issue makes its way up to the Supreme Court, and the jus­tices agree with Secun­da, the result could over­turn the sec­tion of the Nation­al Labor Rela­tions Act that allows states to pass right-to-work mea­sures as well as the statutes in all 26 states that have passed them in one fell swoop.

The Wis­con­sin case won’t get there. Because Wis­con­sin is in the same 7th Cir­cuit that reject­ed the ​“tak­ings” argu­ment in Swee­ny v. Pence (mak­ing it, for now, a set­tled mat­ter there), unions filed their case in state court over the state’s constitution.

But West Vir­ginia and Michi­gan are states that recent­ly passed right-to-work laws, and they are both in dif­fer­ent fed­er­al court cir­cuits. Unions in those states could chal­lenge the con­sti­tu­tion­al­i­ty of right to work on the fed­er­al lev­el. Unions in Ida­ho already have a case pend­ing, which is a par­tic­u­lar­ly excit­ing prospect as that state falls with­in the lib­er­al 9th cir­cuit. (Keep an eye out for Oper­at­ing Engi­neers Local 370 v. Was­den.)

The ​“tak­ings” approach is not with­out its crit­ics. Seat­tle Uni­ver­si­ty Asso­ciate Pro­fes­sor of Law Char­lotte Gar­den notes that Judge Wood’s inter­pre­ta­tion of the Tak­ings clause is one more com­mon­ly advanced by anti-reg­u­la­to­ry con­ser­v­a­tives, and that labor tak­ing up the cause could have unin­tend­ed con­se­quences. ​“There’s a dif­fi­cul­ty of apply­ing exist­ing ​‘tak­ings’ law in this kind of con­text,” she says. ​“Tak­ings” is gen­er­al­ly applied to prop­er­ty, she says, and what’s being tak­en from unions is the labor of their staff.

As an alter­na­tive strat­e­gy, Gar­den points out that the NLRB has indi­cat­ed an open­ness to con­sid­er­ing whether unions in right-to-work states can charge a fee to non-mem­bers who want to file a grievance.

Any rule­mak­ing by the Board on right to work can expect to be chal­lenged by busi­ness inter­ests, which could open dif­fer­ent con­sti­tu­tion­al ques­tions about the law. The Indi­ana unions actu­al­ly argued in Sweeney v. Pence that the Taft-Hart­ley amend­ments to the NLRA were only meant to apply to ques­tions of com­pelled union mem­ber­ship, not fees for ser­vice. But I believe there remains a com­pelling argu­ment about leg­isla­tive intent.

Remem­ber­ing our his­to­ry will be vital to success

The judges who reject­ed the ​“tak­ings” log­ic in Sweeney vs. Pence argued that unions weren’t uncom­pen­sat­ed for their duty to rep­re­sent all work­ers in a bar­gain­ing unit. They wrote, ​“we believe the union is just­ly com­pen­sat­ed by fed­er­al law’s grant to the Union the right to bar­gain exclu­sive­ly with the employ­er. The rea­son the Union must rep­re­sent all employ­ees is that the Union alone gets a seat at the nego­ti­a­tion table.” This is a bunch of ahis­tor­i­cal non­sense that betrays a lack of under­stand­ing of labor rela­tions and pow­er dynamics.

But why should we expect a cou­ple of judges to get this right when most union activists are so mud­dled on the his­to­ry and effects of the duties of exclu­sive rep­re­sen­ta­tion and the union shop? To win, we need to under­stand our his­to­ry and have real clar­i­ty on our goals to regain power.

When the Nation­al Labor Rela­tions Act was writ­ten, unions were ​“mem­bers-only” orga­ni­za­tions that com­pet­ed with each oth­er. They con­test­ed for pow­er in the same work­places over who would make the best bar­gain­ing demands, who could extract the big­ger con­ces­sions from man­age­ment and who could orga­nize the most suc­cess­ful job actions. Employ­ers hat­ed this.

In pur­suit of labor peace, employ­ers began sign­ing con­tracts with unions as the ​“sole and exclu­sive rep­re­sen­ta­tive” of their work­ers. These ear­ly con­tracts gave employ­ers a one-year guar­an­tee that there would be no new union demands and no strikes. Unions went with it because it helped knock out the com­pe­ti­tion. The NLRB, which had been cer­ti­fy­ing unions as rep­re­sent­ing their mem­bers only, also went with it and now cer­ti­fies unions as exclu­sive rep­re­sen­ta­tives, exclusively.

Agency fee orig­i­nat­ed not mere­ly as com­pen­sa­tion for the finan­cial costs of rep­re­sent­ing all the work­ers in a unit, but for the polit­i­cal costs. Dur­ing World War II, patri­ot­i­cal­ly moti­vat­ed unions pledged not to strike, and were reward­ed with gov­ern­ment-dic­tat­ed wage freezes. Work­ers protest­ed by quit­ting their unions. In order to keep unions from drop­ping their no-strike pledges, the War Labor Board began to reward unions a ​“main­te­nance of mem­ber­ship” rule which pre­vent­ed work­ers from quit­ting the union dur­ing the term of a con­tract. This evolved into the union shop and agency fees.

The com­bi­na­tion of exclu­sive rep­re­sen­ta­tion and agency fee does con­tain the poten­tial for real pow­er and real wins for unions, as well as labor peace for employ­ers. But it also tends to make unions more con­ser­v­a­tive and less mil­i­tant. Exclu­sive rep­re­sen­ta­tion with­out agency fee is the worst of both worlds, and should be resisted.

For three quar­ters of a cen­tu­ry the only way that the NLRB would ​“cer­ti­fy” a union was as the exclu­sive rep­re­sen­ta­tive of all of the work­ers at a rep­re­sent­ed work­place, most­ly with the union’s under­stand­ing that it could bar­gain for a con­tract clause that oblig­ates rep­re­sent­ed work­ers to pay some fair share of the union’s expenses.

This ​“union cer­ti­fi­ca­tion” gives col­lec­tive bar­gain­ing the force of law that an arm of the fed­er­al gov­ern­ment — the NLRB — will drag an employ­er that refus­es to rec­og­nize and bar­gain ​“in good faith” with a cer­ti­fied union to court to force them to. So, for a union to tear up this ​“cer­ti­fi­ca­tion” to rep­re­sent all of the work­ers and say, ​“we only rep­re­sent our mem­bers now” car­ries the risk of los­ing the back­ing of the NLRB — but the poten­tial reward of forc­ing the courts to grap­ple with the trade­offs of forced rep­re­sen­ta­tion with­out taxation.

To win big, we need a union in a right-to-work state that is gen­uine­ly will­ing to cede exclu­sive rep­re­sen­ta­tion to kick out the scabs.

What I think this would look like is that union, just pri­or to the expi­ra­tion of their cur­rent con­tract, fil­ing a let­ter with the employ­er and the labor board dis­claim­ing rep­re­sen­ta­tion of the entire bar­gain­ing unit but demand­ing to bar­gain for their mem­bers only (and sub­se­quent­ly refus­ing to bar­gain over a no strike clause). We’ve got a much stronger case if it’s brought to fed­er­al court by an employ­er com­plain­ing that a union won’t rep­re­sent all the work­ers than one brought by a union com­plain­ing about a loss in agency fee revenue.

It is time to start using the courts more strategically

The idea that the Supreme Court could swing from seri­ous­ly con­sid­er­ing forc­ing the entire pub­lic sec­tor to go right to work in this term, to weigh­ing the very con­sti­tu­tion­al­i­ty of right-to-work laws two or three years lat­er might seem too fan­tas­ti­cal, but such is the strange lack of case law over the under­ly­ing legal jus­ti­fi­ca­tion for requir­ing that a union rep­re­sent all the work­ers but for­bid­ding them to man­date dues and fees for that ser­vice work.

“This isn’t stare deci­sis at all,” says Paul Secun­da, describ­ing the Latin term for the legal oblig­a­tion of judges to stand by set­tled deci­sions. ​“You’ve got one deci­sion from one cir­cuit court. This is hard­ly set­tled case law.”

As I’ve not­ed, unions have tend­ed to shy away from judi­cial strate­gies, and, on right to work in par­tic­u­lar, labor has long favored a leg­isla­tive solu­tion. Repeal­ing the Taft-Hart­ley Act that con­tained the right-to-work amend­ment to our nation’s main labor law was the top leg­isla­tive pri­or­i­ty of the AFL, the CIO and its merged suc­ces­sor from the time of its pas­sage in 1947 well into the 1980s.

There were 12 right-to-work laws on the books — most­ly in for­mer slave states — at the time of Taft-Hartley’s pas­sage. They had no force of law, as the fed­er­al NLRA pre­empt­ed them — that is, until Taft-Hart­ley. And again, a close look at the leg­isla­tive intent might reveal that Con­gress mere­ly meant to allow states to ban union mem­ber­ship—not agency fees — as a require­ment of employ­ment. Or, more crude­ly, they may have basi­cal­ly been say­ing, ​“Let the Con­fed­er­a­cy secede from the New Deal.”

The AFL and the CIO, which by 1947 had both aban­doned orga­niz­ing the south, seem­ing­ly wrote the for­mer Con­fed­er­a­cy off at the time. Since labor lost lit­tle to no mem­ber­ship as a result of those first 12 right-to-work states, lit­tle brain­pow­er was devot­ed to chal­leng­ing the con­sti­tu­tion­al­i­ty of the scheme. Like­wise, when right to work next spread to west­ern and plains states like Ari­zona and Nebras­ka, labor sim­i­lar­ly wrote them off.

When right to work first spread to a bedrock labor strong­hold, Indi­ana in 1959, the move was so con­tro­ver­sial that with­in eight years labor had man­aged to over­throw the Repub­li­cans, who sup­port­ed it in all three cham­bers of gov­ern­ment and repeal the law. This win — the only instance of a right-to-work law in a vital blue-col­lar labor state being repealed leg­isla­tive­ly — may have ulti­mate­ly been coun­ter­pro­duc­tive, giv­ing unions false hope that killing right to work is a mat­ter of mak­ing sure the bad guys don’t win re-election.

The labor move­ment of 1965 could enter­tain such fan­tasies. The labor move­ment that has seen bases of union pow­er in Indi­ana, Michi­gan, Wis­con­sin and West Vir­ginia go ​“right to work” with­in the same half decade must wake up to the fact that it will take more than elec­tions to reverse the dam­age. It will also take a judi­cial activism agen­da for labor, like I have advo­cat­ed.

And ulti­mate­ly, work­ing peo­ple in Amer­i­ca will gain no new rights with­out stok­ing a hell of a lot of chaos, through strikes and more. But we’ll also gain no new rights with­out legal demands like the Oper­at­ing Engi­neers Local 370 v. Was­den case hang­ing out there. It is now up to the sis­ters and broth­ers in oth­er ​“right to work” states — Michi­gan, West Vir­ginia and beyond — to join the fight.

This post has been updated.