Judge William Foust Either Disingenuous or Ignorant Regarding Union Monopoly Bargaining

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As California Attorney General Kamala Harris (pictured), a Big Labor loyalist, admitted in a brief filed with the U.S. Supreme Court last year, federal and many state labor laws grant union bosses “substantial latitude” to advance bargaining positions that “run counter to the economic interests of some employees.” Unfortunately, Dane County Circuit Judge William Foust’s recent decision overturning Wisconsin’s Right to Work law displayed no awareness of this undeniable fact. Image: Ringo H.W. Chiu/Associated Press

Nearly a month after it was issued, union officials and their allies in the media and academia are still vigorously applauding Dane County Circuit Judge William Foust’s April 8 decision overturning Wisconsin’s year-old Right to Work law.

Even die-hard apologists for Big Labor monopoly privileges admit Foust’s ruling in Machinists Local Lodge 1061 will almost certainly be overturned by the Wisconsin Supreme Court. What they don’t want to acknowledge is just how factually challenged and poorly reasoned the county judge’s decision is.

In order to reach the conclusion he did, Foust had to ignore not just numerous federal and state precedents upholding Right to Work laws, but also a key function of union monopoly bargaining examined by U.S. Supreme Court Justice Robert Jackson in his 1944 J.I. Case decision.

Jackson explained that “exclusive” union bargaining as authorized by the National Labor Relations Act empowers union bosses to prevent the individual employee from negotiating directly with the employer in order to get “better terms than those obtainable by the group.” (Use the link below to read J.I.Case in its entirety.)

From the perspective of the J.I. Case court, this is acceptable, because, as the Jackson majority opinion put it, “The practice and philosophy of collective bargaining look[] with suspicion on individual advantages.” Today Big Labor loyalists like California Attorney General Kamala Harris continue to recognize that there are substantial numbers of workers for whom union monopoly bargaining is economically detrimental.

As Harris admitted last year in a brief to the U.S. Supreme Court, federal and many state labor laws grant Big Labor “substantial latitude” to advance bargaining positions that “run counter to the economic interests of some employees.”

Instead of acknowledging the uncontested findings of J.I. Case, however, Foust opted to pretend that all workers “benefit” from unionization while insisting that the Wisconsin Constitution mandates that Big Labor have what amounts to taxation power over unionized employees.

Hence, he concluded, the Right to Work law must go.

Wisconsin Attorney General Brad Schimel is now asking an appellate court to stay Foust’s lawless decision and has promised to work to get it overturned. Attorneys for the National Right to Work Legal Defense Foundation, who joined with the Milwaukee-based Wisconsin Institute for Law and Liberty to submit a brief to Foust supporting the attorney general’s stance, will continue to advocate for the Badger State’s Right to Work law as the appeal is considered.

Since most members of the Wisconsin Supreme Court have established records on the bench of showing respect for both legal precedents and the relevant facts when considering labor-policy cases, Schimel and his allies have an excellence chance of prevailing in the Machinists Local Lodge 1061 case.

Unfortunately, being overturned is highly unlikely to stop Foust from smearing unionized workers who oppose the stances Big Labor takes at the negotiating table. In the words of U.S. Supreme Court Justice Anthony Kennedy, union officials who wield legal monopoly-bargaining privileges make such employees “compelled riders for issues on which they disagree.”

J. I. CASE CO. v. NATIONAL LABOR RELATIONS BOARD …

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