April 21, 2014 – The U.S. Court of Appeals for the Seventh Circuit recently upheld Wisconsin’s anti-collective bargaining law (Act 10) as constitutional, noting municipal employees can still speak collectively even if their employers cannot listen through collective bargaining.

Act 10 severely curbed the collective bargaining rights of public sector workers in Wisconsin, and has been the subject of much litigation since enacted in 2011. Currently, a state constitutional challenge is pending before the Wisconsin Supreme Court.

But in Laborers Local 236, AFL-CIO et al. v. Scott Walker, No. 13-3193 (April 18, 2014), a three-judge panel upheld Act 10 as constitutional as related to municipal workers.

The panel acknowledged that Act 10 outright prohibits municipal employers from negotiating collective bargaining agreements with unions outside the subject of base wages. But the court ruled that such prohibition does not violate workers’ First Amendment rights.

The First Amendment prohibits laws that burden one’s “right to associate” in groups engaged in free speech and other constitutionally protected activities. It also prohibits laws against the right to “petition the Government for a redress of grievances,” known as the Petition Clause.

The plaintiff unions, which represent workers in the City of Madison and Dane County, argued that Act 10, as it relates to municipal workers, violates both these protections.

The three-judge appeals court panel did not agree, however. 

Precedent establishes the workers’ First Amendment right “to attempt to use their collective weight to advocate for change,” wrote Judge Joel Flaum, joined by circuit Judge Illana Rovner and Judge Virginia Kendall, a federal district judge in Illinois sitting by designation.

But the panel noted that the Constitution does not require the state to listen to their message through collective bargaining.

Nothing in Act 10, the panel concluded, “precludes the unions or their members from expressing their views to their municipal employer or from trying to persuade their employer to adopt a particular policy,” Judge Flaum wrote.

However, the right to grieve collectively does not require laws that mandate the employer to collectively bargain, the panel noted. “Act 10’s prohibition on collective bargaining does not run afoul of the Petition Clause,” Flaum wrote.

The unions recognized that employers aren't constitutionally obligated to negotiate, but argued that collective workers have a First Amendment right to ask. Under Act 10, municipal employers can never voluntarily negotiate outside wages, even if they wanted to, the unions argued.

The panel rejected that argument, noting that employers can still address union grievances oustide wages, just not through the collective bargaining process. 

The panel also rejected the unions’ argument that Act 10 places cumulative burdens on the right to associate as a collective worker’s union.

Those burdens include a much more stringent union recertification process, a prohibition on automatic payroll deductions to pay union dues, and a prohibition on the union’s ability to collect “fair share” payments from nonunion members. But the panel noted that Act 10 does not prohibit workers from forming unions.

“We take the plaintiff’s point that Act 10 will likely have the effect of making things more challenging for general-employee unions,” the panel noted. “But the First Amendment does not require the state to maintain policies that allow certain associations to thrive.”

Equal Protection Challenge

Finally, the panel rejected the plaintiff unions’ equal protection challenge. Previous equal protection challenges by unions focused on Act 10’s different treatment of “general employees” and “public safety employees,” to which Act 10 does not apply.

However, this equal protection challenge focused on unionized or “represented employees” as opposed to individuals workers in the unit who choose not to join the union.

The plaintiff unions argued Act 10 bars municipal employers from bargaining on certain subjects with represented employees. Individual, unrepresented workers are not so restricted, and the different treatment requires the state to show a “compelling interest” for the disparity, they said.

“This differential treatment of represented employees and individual employees, they argue, amounts to the state punishing the former for exercising their petition and association rights,” the panel noted. However, the panel was not persuaded.

“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,” Flaum wrote. “The association right does not compel public employers to sit down at the table with whomever an employee may wish to represent them.”

Related Articles

Act 10: Sides Battle, State Supreme Court Will Make Final Call on Collective Bargaining Law – WisBar News, Nov. 20, 2013

Act 10: Federal Appeals Court Rules on Budget Repair Bill, Downs Challenge by Unions – WisBar News, Jan. 23, 2013