Federal court strikes down two provisions in Wisconsin’s collective bargaining law, leaves the rest intact
Wisconsin Education Association Council v. Walker, No. 11-cv-00428 (W.D. Wis. Mar. 30, 2012)
Abstract: U.S. District Judge William Conley has ruled that two provisions in Wisconsin’s 2011 collective bargaining law applicable only to general employees and their unions are unconstitutional, but has upheld the remaining provisions applicable to both general and public safety employees. Specifically, the court concluded that the law’s annual recertification requirement for general employees unions violated the Equal Protection Clause, and the the law’s prohibition of dues withholding for general employees violated the First Amendment.
Facts/Issues: In June 2011, the 2011 Wisconsin Act 10 (Act 10) took effect, amending the state’s collective bargaining rules. Act 10 created two new classifications of public employees, ”general employees” and “public safety employees,” with certain restrictive provisions applying only to general employees. As the court noted, Act 10 “left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights.”
Three specific provisions of Act 10 treat general employees and their unions differently than public safety employees: “(1) the elimination of mandatory dues and fair share fees and the stripping of all collective bargaining rights, except on ‘total base wages’; (2) the apparently-unprecedented requirement for annual recertification by an absolute majority of union members (as opposed to conditional or member-driven recertification by a simple majority of those actually voting); and (3) a prohibition on the voluntary withholding of union dues from a general employee’s paycheck.”
Restrictions on Collective Bargaining Rights of General Employees
Under Act 10, general employee unions can no longer bargain collectively over a broad array of topics related to wages, hours, conditions of employment, or fair-share agreements. General employee unions’ collective bargaining is limited to “only total base wages and excludes any other compensation.” These restrictions do not apply to public safety employees.
Annual Recertification of General Employee Unions
Once any collective bargaining agreement in effect at the time of Act 10′s enactment expires or terminates, general employee unions must submit to recertification each year, requiring at least 51 percent, an absolute majority, of all general employees to vote to recertify. However, Act 10 does not change existing law that public safety employee unions do not need to hold recertification elections, unless 30 percent of all general members vote for decertification. If an election is called for, only a simple majority of actual voting members is required.
Voluntary Dues or Fair-Share Fee Deductions
Under Act 10, employers are prohibited from deducting union dues or fair-share fees from general employees’ paychecks, though employers of public safety employees may continue to do so.
Consequently, a coalition of seven of the state’s largest labor unions representing public employees, including the Wisconsin Education Association Council, filed suit in federal district court. In the suit, the unions challenged Act 10′s creation and treatment of the two new classifications of public employees and the specific provisions applicable only to general employees, both under the Equal Protection Clause. The unions also challenged the prohibition related to automatic dues withholding under the First Amendment.
Ruling/Rationale: The district court found that the unions had not met their burden with respect to their Equal Protection Challenge to the provisions limiting the collective bargaining rights of general employees and their unions. However, the district court ruled in favor of the unions on two issues. It held that Act 10′s provision requiring annual recertification of general employee unions violated the Equal Protection Clause, and that the provision prohibiting voluntary union dues deductions as to general employee unions violated the First Amendment, striking down these provisions.
The Unions’ Equal Protection Claims
The district court analyzed the unions’ Equal Protection claims under a rational basis standard, which asks “(1) whether the statute’s purpose is reasonable, and (2) whether the statute rationally advances that purpose.”
A. Restrictions on Collective Bargaining Rights of General Employees
The general employee unions challenged the provision in Act 10 that restricts their collective bargaining rights, but not those of public safety employee unions. The court explained that a state has the right to bar its public employees from engaging in any form of collective bargaining, and found that “states may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category, … provided the classifications do not involve a suspect class and a rational basis exists for a state’s line drawing.”
The basis provided by the State for these two new classifications of employees was to avoid the public safety employees from striking, particularly in times of emergency. The district court stated that “providing basic, emergency services is a core governmental function.”
The district court found no suspect class, and that the unions had failed to present sufficient evidence that the new classification of employees, which exempted 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.”
While upholding this particular provision, the district court did note that “it cannot wholly discount evidence that the line-drawing between public safety employees and general employees was influenced (or perhaps even dictated) by whether the unions representing these employees supported Governor Walker’s gubernatorial campaign.” However, “political favoritism is no grounds for heightened scrutiny under the Equal Protection clause.”
B. Annual Recertification of General Employee Unions
The unions challenged the provision requiring their annual recertification, while public safety employee unions had no similar requirement. Still under the rational basis standard of review, the district court stated that “the relationship between the interest of avoiding strikes and [the annual recertification] provisions is substantially more tenuous.” The district court specifically found, “Act 10′s exemption of public safety employees from the annual recertification requirement … certainly has no obvious relationship to the government’s supposed concern with disruptions by public safety employees.” Because the State failed to “articulate … how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose,” the district court held that this provision violated the Equal Protection clause.
C. Voluntary Dues or Fair-Share Fee Deductions
The district court found the State’s reason for the two classifications of employees, avoiding strikes of public safety employees, to be “even more irrational to deny a voluntary set off [of] 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.” In so finding, the district court stated that “[e]ven if such an upside program somehow rationally advanced the [State's] expressed concern with avoiding a strike by public safety unions, … this concern undermines [the State's] argument for the constitutionality of Act 10 under the First Amendment ….”
The Unions’ First Amendment Claims
Ultimately, the district court did not reach a conclusion about whether the voluntary dues deduction provision violated the Equal Protection clause, because it found that this provision violated the First Amendment. In its First Amendment analysis, the district court noted, “the payment of dues — some of which specifically fund political activity — constitutes an expressive activity.” “[S]electively prohibiting public employers from providing this service [of voluntary dues deductions] to general employees and their unions necessarily diminishes their speech — both general employees’ ability to support their union financially, as well as the union’s ability to fund its speech.”
“The Supreme Court has also repeatedly recognized,” noted the court, “that a burden on speech, rather than an outright ban, is still subject to heightened scrutiny.” Under this provision, “general employees and their unions are treated differently … than public safety employees and their unions.” The district court stated, “[w]hether 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 [them], it has that appearance.”
The district court rejected the State’s argument that the withholding prohibition did not implicate the First Amendment, and noted that the State “proffered no justification” for the withholding prohibition. Ultimately, the district court did not “uphold the State of Wisconsin’s apparent, if not actual, favoritism and entanglement in partisan politics by discriminating in favor of fundraising efforts on behalf of public safety unions over general employee unions.”
The district court ordered the reinstatement of voluntary, automatic dues deductions for all members of public unions by no later than May 31, 2012, and enjoined Act 10′s requirement for annual, mandatory recertification of general employee unions by an absolute majority of their members.
Wisconsin Education Association Council v. Walker, No. 11-cv-00428 (W.D. Wis. Mar. 30, 2012)
[Editor's Note: The irony of this legislation passing in Wisconsin, the first state to allow collective bargaining by public employees, was not lost on Judge Conley:
"With the passage of 2011 Wisconsin Act 10, denominated the 'Budget Repair Bill,' the State of Wisconsin took a sweeping right turn from a half century of developments in the rights of its public employees to unionize, collectively bargain and collect union dues."
Legal Clips has been following this particular development in collective bargaining in Wisconsin since February 2011, before the legislation was enacted. For the most recent post and links to previous posts, see the July 2011 Legal Clips summarizing an AP article in Education Week.
Mary Bell, WEAC President, published a statement in response to the court's decision, supporting the district court's decision with respect to the unlawfulness of the legislation's recertification requirement and voluntary dues withdrawal from employees' paychecks. However, Bell stated that "our members still don't have their bargaining rights back." Bell's statement can be accessed here. ]