MILWAUKEE (CN) – Two local chapters of the Operating Engineers of Wisconsin claim a law championed by Governor Scott Walker that significantly limits the collective-bargaining rights of state employees violates their First Amendment rights.
2011 Wisconsin Act 10 prohibits public workers from bargaining over anything except wages, ends the practice of automatic dues being deducted from workers’ paychecks and requires yearly votes for unions to remain certified. The law became the signature legislation for Governor Walker, a Republican.
Two chapters of the Operating Engineers of Wisconsin – the International Union of Operating Engineers Local 139 and Local 420 – filed a nine-page lawsuit Friday in Milwaukee federal court against Walker, Wisconsin Attorney General Brad Schimel and James Daley, chairman of the Wisconsin Employment Relations Commission.
The unions claim Act 10 violates their freedom of speech and freedom of association rights. They are represented by Mark Sweet in Milwaukee and Brian Hlavin of Baum Sigman Auerbach & Neumand in Pewaukee, Wis.
“Although the work of the unions benefits all bargaining unit employees, under Wisconsin’s law, only those employees who choose to be union members may be required to pay for the benefits they receive. Any employee who declines union membership is given a state-sanctioned right to receive all these services for free,” according to the complaint.
The lawsuit continues, “Prior to the enactment of Act 10, both unions routinely negotiated contracts which included a variety of benefits and protections such as health issuance, pensions, seniority rights, and protection against unjust termination. After Act 10, none of those subjects can be negotiated.”
The complaint cites the pending U.S. Supreme Court case Janus v. AFSCME, which is a challenge to the high court’s 1977 ruling in Abood v. Detroit Board of Education.
The Abood decision held that all union employees covered by a contract must pay dues but those funds cannot be used for political purposes. Child-support specialist Mark Janus claims in his new case that any position a public union takes, from advocating for higher pay to lobbying for specific policy, is inherently political.
The Wisconsin unions say in their lawsuit that “if Janus overrules Abood, all union speech directed to the government will be considered inherently political in nature, indistinguishable from lobbying the government.”
“The exercise of free speech, including political speech, is a fundamental First Amendment right under the U.S. Constitution. Therefore, all subjects of collective bargaining between plaintiffs and the government are fundamental rights protected by the First Amendment,” the complaint states. “In limiting several subjects of bargaining, Act 10 is a content-based restriction infringing on plaintiffs’ rights to free speech.”
The International Union of Operating Engineers, or IUOE, Local 139 and Local 420 also claim Act 10 infringes “upon association rights to organize as a collective bargaining unit by increasing costs and penalties through its recertification and fair share provisions.”
A similar complaint was filed last week in Illinois, arguing a management-rights clause under that state’s Public Labor Relations Act “unconstitutionally restricts the rights of labor unions and members to negotiate over all subjects of bargaining with a government employer.”
Wisconsin’s Act 10 emerged in 2011 when the Badger State faced a multibillion-dollar deficit and was portrayed as an attempt to repair the state budget. The bill inspired a flurry of copycat legislation in states around the country and led to a failed recall campaign against Governor Walker.
The Wisconsin IUOE chapters want a judge to declare the changes implemented by Act 10 are unconstitutional and an injunction blocking state officials from enforcing them.
“Public employees’ livelihoods have been under attack for seven years under Act 10,” Mark Maierle, business manager for IUOE Local 420, said in a statement. “By failing to consider the consequences of applying free speech protections to collective bargaining, anti-union interests have left the door open for public employees to negotiate for increases to wages, pensions, and healthcare benefits.”
Together, the two unions represent over 10,000 Wisconsin workers. IUOE Local 139 consists of construction, maintenance and repair work public employees, and Local 420 workers operate and maintain physical plant systems and buildings in the state for public utilities and schools.
Governor Walker's spokeswoman Amy Hasenberg expressed confidence in the law in an email Tuesday.
“Act 10 will once again be upheld just like it was in the past because it is constitutional," she said.
Daley, chairman of the Wisconsin Employment Relations Commission, declined to comment on the pending litigation. The office of Attorney General Schimel did not immediately respond to an email request for comment.
The federal lawsuit comes nearly four years after a divided Wisconsin Supreme Court upheld Act 10, finding that the “restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed in the decision to participate.”
“If a general employee participates in collective bargaining under Act 10’s statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled,” Justice Michael J. Gableman wrote at the time.
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