April 2, 2012 – Seven public unions that challenged Wisconsin’s controversial “budget repair bill” were recently successful in striking parts of it, including provisions that made it more difficult for unions to retain their certification and collect dues.

William Conley, chief judge for the U.S. District Court for the Western District of Wisconsin, upheld the  provisions of 2011 Wisconsin Act 10 that eliminated most collective bargaining rights for public sector employees and also upheld an exemption for "public safety employees."

But the court struck down provisions of Act 10 that forced public unions to annually recertify by an absolute majority of union members, and prohibited automatic deductions to pay dues.

Public safety exemption okay

The plaintiff unions challenged, on Equal Protection grounds, Act 10’s exemption for public safety employees, arguing the state had no rational basis to treat those workers differently.

Under Act 10, public sector employee unions cannot collectively bargain on topics related to wages, hours, or conditions of employment, except on “total base wages.”

However, Act 10 does not prohibit unions representing “public safety employees,” mainly police and firefighters, from full collective bargaining. That is, Act 10 exempts public safety workers.

The defendants, Gov. Scott Walker and other state public officials, argued that the public safety employee exemption was included to prevent the disruption of “essential public services.”

In Wisconsin State AFL-CIO et al. v. Walker et al., No. 11-cv-428, Judge Conley upheld the exemption for public safety workers. “Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears no rational relationship to a legitimate government interest in avoiding strikes of those employees,” Judge Conley wrote.

The court also rejected the plaintiffs’ argument that Act 10 unconstitutionally exempts those public safety employees that endorsed Walker’s bid for governor. “This is not an ordinary case in any number of respects, but it is ordinary in the sense that political favoritism is no grounds for heightened scrutiny under the Equal Protection clause,” Judge Conley wrote.

Court strikes down recertification requirement

Act 10 requires an absolute majority – at least 51 percent of all general employees in the collective bargaining unit – to recertify the union each year.

Before Act 10, unions didn’t need to recertify unless 30 percent of the general union members asked for a decertification election, and the union was recertified if 51 percent of those voting called for recertification. Act 10 does not apply to certification of public safety worker unions.

Noting evidence that no other state labor law requires annual recertification, the district court found that the “onerous recertification provision” did not have a rational basis.

“[I]t seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law,” Judge Conley wrote.

Thus, the court enjoined Act 10’s yearly recertification mandates.

Ban on automatic dues deductions unconstitutional

The district court also struck down a provision that prevents employers of general public employees from using automatic payroll deductions to pay union dues but does not prohibit public safety worker employers from deducting dues automatically.

“Indeed, it is even more irrational to deny a voluntary set off union dues to general union members who affirmatively request it while imposing an involuntary set off of dues by public safety union members who affirmatively oppose it,” Judge Conley wrote.

The dues provision violates the First Amendment, the court explained, because dues money is generally used to fund protected speech and Act 10 unlawfully abridges that right.

“[S]electively prohibiting public employers from providing this service to general employees and the unions necessarily diminishes their speech – both general employees’ ability to support their union financially, as well as the unions’ ability to fund its speech,” Judge Conley wrote.

Gov. Walker and the other defendants did not provide a justification for the ban on automatic dues deductions relating to general public employees. In the court’s view, the law creates the appearance of viewpoint discrimination, because union dues support speech.

“Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance,” Judge Conley wrote.

The court ordered reinstatement of automatic dues deductions for all public employees no later than May 31, 2012, expecting that an appeal may follow.