HR Management & Compliance

Walker to appeal lower court ruling against Wisconsin law restricting union rights

by Timothy Edwards

In what may likely be a temporary victory for public unions in the state of Wisconsin, a Dane County judge declared that Governor Scott Walker’s restrictions to the collective bargaining rights of specific government employees (Act 10) are unconstitutional. The court’s decision is not the last word on this politically charged topic. The Wisconsin Supreme Court, which has already upheld Act 10 on other grounds, is likely to overrule some, if not all, of the trial court’s decision. The Walker administration will seek to postpone implementation of the trial court’s decision pending an appeal. The Wisconsin Supreme Court will likely take the case before any intermediate review by the Wisconsin Court of Appeals.

Act 10 includes a number of provisions that curtail — and in some instances eliminate — the right of specific employees to engage in collective bargaining, deduct dues for general employee unions, obtain wage increases over the cost of living, and obtain certification. Act 10 also limits “fair share” dues agreements (an agreement that all members of a bargaining unit pay a proportionate share of the costs of bargaining) to public safety and transit unions. Finally, Act 10 prohibits the city of Milwaukee from making pension fund contributions that represent the employees’ share. These specific provisions are the most controversial provisions in Act 10 and have set the stage for a heated disagreement about the proper role of public-sector unions in the state.

Politics aside, the parameters of this role are subject to constitutional protections. In the Dane County proceeding, the trial court was asked to determine whether specific provisions of Act 10 violated the employees’ rights of free speech, association, and equal protection under the Wisconsin Constitution. In addition, the court was asked to decide whether the prohibition on the city of Milwaukee from making the employees’ share of pension fund contributions is an impairment of contracts and a violation of due process under the Wisconsin Constitution.

The court specifically concluded that provisions of Act 10 that restrict collective bargaining, limit the right to deduct dues for general employee unions, limit the right to obtain wage increases over the cost of living, restrict “fair share” agreements, and restrict certification violate the employees’ rights of free speech, association, and equal protection. These provisions are now null and void. In addition, the court held that the prohibition on Milwaukee’s efforts to match pension fund contributions was unconstitutional because it constituted a “local affair” beyond the purview of state regulation.

The core of the court’s opinion relates to the restrictions on collective bargaining and associated rights, such as certification, fair-share agreements, and deducting dues from wages. While the court recognized that there is no constitutional right to engage in collective bargaining, it also recognized that the government cannot make the surrender or restriction of a constitutional right a “condition” of this right when it is affirmatively conferred. Here, the state has imposed “significant and burdensome restrictions” on employees who choose to associate in a labor organization without justification and therefore violated the Wisconsin Constitution.

The court also concluded that these provisions of Act 10 violated the equal protection clause because they singled out employees who chose to belong to unions for disparate treatment. In an interesting legal move, the court applied “strict scrutiny” because of the infringement on the employees’ fundamental right to speech and association and concluded that the classifications in question violated the equal protection clause. In reaching that conclusion, the court observed that the state conceded the disparate treatment and that the trial court found the state failed to provide a legitimate justification for the differing treatment of union versus nonunion employees under this strict scrutiny analysis.

The discussion about Act 10 and collective bargaining is far from over, both in the court system and the ongoing political dialogue. The Walker administration will continue to enforce Act 10 until the next appeal is decided, signaling an immediate fight over the effectiveness of this decision.

Timothy Edwards is a partner with Axley Brynelson, LLP, in Madison, Wisconsin, and a frequent contributor to Wisconsin Employment Law Letter.

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