Federal appellate court upholds amendments to Wisconsin labor law affecting rights of one class of public workers
Wisconsin Educ. Ass’n Council v. Walker, Nos. 12-1854/12-2011/12-2058 (7th Cir. Jan. 18, 2013)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has unanimously affirmed a federal district court’s decision that a provision in Wisconsin’s Act 10, which restricts the collective bargaining rights of public workers classified as “general employees”, is constitutional. All three panel judges also reversed the lower court’s holding that Act 10′s annual recertification requirement for general employees unions violates the U.S. Constitution. However, one judge dissented from the two-judge majority’s holding, which reversed the district court, affirming Act 10′s provision prohibiting of dues withholding for general employees.
Facts/Issues: In June 2011, Wisconsin Act 10 (Act 10) took effect, amending the state’s collective bargaining rules. Act 10 created two new classes 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 limitations on the permissible collective bargaining subjects of “general employees”, except on ‘total base wages’; (2) stricter annual recertification requirements for general employee unions; and (3) the prohibition on the voluntary payroll deduction of union dues from general employees.
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.
The district court ruled that two provisions in Wisconsin’s 2011 collective bargaining law applicable only to general employees and their unions are unconstitutional, but upheld the remaining provisions applicable to both general and public safety employees. Specifically, the district court concluded that Act 10’s annual recertification requirement for general employees’ unions violated the Equal Protection Clause, and Act 10′s prohibition of dues withholding for general employees violated the First Amendment.
Ruling/Rationale: Affirming the lower court’s decision, the three-judge panel of the Seventh Circuit unanimously held that Act 10′s restrictions on general public employees’ right to collectively bargain do not violate the U.S. Constitution’s Equal Protection Clause. All three judges also upheld the district court’s ruling that Act 10′s annual recertification requirement does not offend the Equal Protection Clause. However, the panel split, 2-1, on the question of whether Act 10′s prohibition on the voluntary withholding of union dues from a general employee’s paycheck violates the First Amendment’s guarantee of free speech.
Taking first the First Amendment challenge to the payroll deduction, the two-judge majority concluded that the question had been settled by Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009), which held that “use of the state’s payroll systems to collect union dues is a state subsidy of speech that requires only viewpoint neutrality.” The panel majority pointed out that “Ysursa requires us to analyze Act 10 under First Amendment cases involving speech subsidies,” and that “[u]nder those cases, Act 10 presents no free speech problem unless it invidiously discriminates on the basis of viewpoint.”
The panel majority rejected the unions’ attempt to characterize the separate classifications for public safety employees and general employees as demonstrating viewpoint discrimination. It stated: “The distinction between public safety and general employee unions in Act 10 is facially neutral, and the Unions do not succeed in showing otherwise.”
The panel majority also found without merit the unions’ argument that Act 10 is a facade for invidious discrimination. The panel majority concluded that it had an “insufficient basis to ascribe [to state] Senator Fitzgerald’s personal position, i.e., a politically weaken union would make it easier to defeat Obama in Wisconsin, to the entire legislature.”
The panel majority concluded that “the use of the state payroll system to collect union dues is a state subsidy of speech. As such, the distinction between public safety and general employees only violates the First Amendment if it discriminates on the basis of viewpoint.” The panel majority determined that Act 10 is not viewpoint discriminatory, and, therefore, does not implicate the First Amendment and requires only rational basis review.”
Applying the rational basis test, the panel majority rejected the unions’ contention that division of public safety and general employees is irrational under the Equal Protection Clause, because “the only explanation for the legislation is the extension of ‘rank political favoritism’ towards the unions that supported the governor’s campaign.” It noted that “animus only invalidates a law when no rational basis exists.” The majority emphasized that a law that otherwise satisfies rational basis scrutiny is not invalidated just because legislators may have been motivated by political favoritism.
Turning to the collective bargaining limitations in Act 10, the panel stated that it agrees that “that Wisconsin reasonably concluded that the public safety employees filled too critical a role to risk such a [work] stoppage. Not only has the Supreme Court previously held labor peace in certain instances is a legitimate state interest, the Court found the interest weighty enough to justify some impingement on the free speech rights of employees who do not belong to a union.” While the panel acknowledged that making the distinction between public safety and general employee unions “may have been a poor choice, such a distinction is not unconstitutional.”
Addressing Act 10′s recertification requirements provision, the panel found the unions had raised the same arguments against this provision as they had against the collective bargaining provision. It found those arguments, as detailed, “are unavailing.”
Finally, having concluded that the First Amendment was not implicated, the majority applied the rational basis test to the challenge of Act 10′s payroll deduction provision under the Equal Protection Clause. It again rejected the unions’ attempt to characterize the distinction between public safety and public employees as irrational. It stated that “these arguments fail for the same reasons stated above – such line-drawing is not for the courts.” It pointed out that “rational basis review does not require the state to ‘produce evidence to sustain the rationality’ of the law, provided the law has ‘some footing in the realities of the subject addressed by the legislation.’”
The dissenting judge took issue with the majority’s reasoning on the payroll deduction provision based on its failure to apply a forum analysis, and failure to analyze the provision beyond a finding of facial neutrality. The dissent found that there was no doubt that Act 10′s application had created a “nonpublic forum”, by providing for the collection of payroll deductions for public safety employee unions’ dues. The dissent stated that “general First Amendment standards for a nonpublic forum are settled: Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”
The dissent criticized the panel majority for creating a difference between the “nonpublic forum” cases and the “subsidy” line of cases where none exists. The dissent stressed that the determining factor is viewpoint discrimination, regardless of the label attached. The dissent stressed courts must go beyond facial neutrality to address the question of whether “the new law violates – in fact – the well-established requirement of viewpoint neutrality.”
The dissent argued that “Ysursa simply did not decide an issue like the one we face here, whether Act 10’s facially neutral but selective limits on access to public payroll deductions are actually viewpoint-neutral or not.” It agreed with the district court, and unlike the majority, found that evidence of political motive was sufficient to find viewpoint discrimination.
In regard to the state’s additional arguments of viewpoint neutrality, the dissent found those arguments had not been made in the district court and, therefore, had been waived. The dissent also charged that those “ad lib” arguments were “further evidence that the defense is just a pretext for unconstitutional viewpoint discrimination.”
Wisconsin Educ. Ass’n Council v. Walker, Nos. 12-1854/12-2011/12-2058 (7th Cir. Jan. 18, 2013)
[Editor's Note: In April 2012, Legal Clips summarized the district court's decision in Wisconsin Educ. Ass'n Council v. Walker, which held that two provisions in Wisconsin’s 2011 collective bargaining law applicable only to general employees and their unions were unconstitutional, but upheld the remaining provisions applicable to both general and public safety employees. Specifically, the district court concluded that the law’s annual recertification requirement for general employees' unions violated the Equal Protection Clause, and the law’s prohibition of dues withholding for general employees violated the First Amendment.]