Defeat for Union Challenge to Wisc. Labor Law | Courthouse News Service
Tuesday, November 28, 2023
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Defeat for Union Challenge to Wisc. Labor Law

(CN) - The 7th Circuit has upheld a law that sharply curbs the power of public-employee unions to bargain with Wisconsin and local governments, and eliminates payroll deductions for union dues.

Enacted in 2011, Act 10 bars Wisconsin and its local municipalities from bargaining with unions over anything but base wages.

The bill had inspired a furious debate in the Wisconsin Legislature and well-publicized demonstrations by union workers and their families outside the statehouse in Madison. Unions also filed several legal challenges to the law but so far have come up empty.

In 2013, the Chicago-based 7th Circuit tossed a separate constitutional challenge filed on behalf of the state teachers' union. Wisconsin courts have also rejected several efforts to void the law.

The American Federation of State, County and Municipal Employees Local 60 and Laborers Local 236 brought the case at hand, which alleged a violation of their First Amendment right of association or their right to petition government for redress of grievances. They claimed Act 10 unfairly disadvantages their members compared with government employees who choose not to have union representation.

A federal judge in Madison rejected these claims, however, holding that the state's public employees "remain free to associate and their unions remain free to speak; municipal employers are simply not allowed to listen."

Affirming on Friday, a three-judge panel with the 7th Circuit observed that the law does not in any way inhibit the ability of unions to act or request negotiations. Rather it inhibits the receptivity of local-government employers, forbidding them to enter into "binding agreements with their employees on a collective basis about anything other than base wages," Judge Joel Flaum wrote for the panel.

The 23-page opinion points to two Supreme Court decisions: Smith v. Arkansas State Highway Employees Local 1315 (1979), and Minnesota State Board for Community Colleges v. Knight (1984), which purportedly established that the First Amendment right to petition includes no requirement that the government respond.

"Surely the line between constitutionality is not drawn according to how open a state decisionmaker is to what you have to say," Flaum wrote. "Without a principle to delineate the amount of solicitude the Constitution requires of state officials, the federal courts should steer clear. ...

"We therefore conclude that Act 10's prohibition on collective bargaining does not run afoul of the [First Amendment] Petition Clause," he added.

The unanimous panel also rejected the unions' claim that Act 10 impinged their right to association, finding the First Amendment "does not require the state to maintain policies that allow certain associations to thrive."

Again, Act 10 circumscribes only how state and local governments conduct their affairs, Flaum noted. Nothing in the law prevents public employees from joining union or unions from representing those employees, he said.

An equal-protection claim under the 14th Amendment meanwhile fails to show meanwhile that Act 10 created a regime that disadvantages union-represented employees compared with individual government employees who choose to go it alone, according to the ruling.

Flaum showed his impatience with the union's arguments.

"At the risk of repeating ourselves, we stress that Act 10 does not mandate any form of unfavorable treatment for union members," he wrote. "These employees still possess every right, and are given every opportunity, that the state grants to their colleagues who elect not to join a union. It's just that Wisconsin has refused to participate in an activity that the represented employees want the state to engage in. Wisconsin has chosen to recognize individual employees as appropriate bargaining partners for municipal employers, but not union representatives. That is Wisconsin's choice to make."

While conceding that the law "will likely have the effect of making things more challenging for general-employee unions," Flaum noted that "this type of impairment is not one that the Constitution precludes."

Judges Ilana Rovner and Virginia Kendall joined the opinion.

At present, the next act in the legal drama is uncertain. The Wisconsin Supreme Court is reviewing a case, Madison Teachers Inc. v. Walker, which raised state-law claims against the law. Meanwhile, attorneys for the unions in this case say they are considered petitioning for an en banc review by the entire federal appeals court.

In a statement, the Wisconsin Attorney General J.B. Van Hollen said, "this ruling, once again, supports the rule of law and recognized the diligence and hard work of our lawyers in defending Act 10. I look forward to a successful resolution of the few remaining challenges to this important law."

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