posted on April 10, 2012 08:15
Background: “With the passage of 2011 Wisconsin Act 10... 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.” Thus began the March 30, 2012 Order of US District Court for the Western District of Wisconsin.
Until last year, all Wisconsin public unionized employees enjoyed similar rights. Act 10 split these unions into two categories, “general”, and “public safety”. “Public safety” employees continued to benefit from rights that Wisconsin had developed over decades, while “general” employees lost most bargaining rights and mandatory dues; had to recertify every year; and were denied voluntary dues deduction. Under prior Wisconsin law, twenty two job categories were defined as “protective occupation employees”. Of these only seven made it into the new category of “public safety”. Some police unions, and all correctional officers were excluded, along with fire/crash rescue specialists. All of the unions that supported the election of the Governor were classified as “public safety” and none of the unions reclassified as “general” supported Governor Walker in the 2010 elections.
Applicable Legal Principles: States have broad power to make laws without interference from the federal government. Only if a state passes legislation that undermines rights granted to all citizens by the Constitution may a federal court stick it’s nose into state affairs. It’s not enough to show that a law is ill-conceived, unfair or offensive. For just plain bad law the remedy is at the ballot box.
Hence, for Act 10 to be successfully challenged in federal court, it would be necessary to demonstrate that the law stripped Wisconsin citizens of rights guaranteed by the U.S. Constitution. The Act was challenged on the grounds that it was irrational, and that it undermined fundamental First Amendments rights of freedom of speech and freedom to peaceably assemble. To ensure that that classifications between groups are not made in order to disadvantage the group burdened by the law, a law must have a reasonable purpose. Generally, this is not a difficult test, as the court applies a “rational basis” analysis. The right to freedom of speech and freedom to assemble are fundamental rights, and laws interfering with these rights are subject to strict, or heightened, scrutiny. The following is a summary of the court’s opinion and order.
Collective bargaining is not currently a constitutional right for public employees. Therefore, the standard of review was the “rational basis” test. The state argued that the creation of a new class of public safety unions and exempting those unions from extensive limitations in collective bargaining was rationally related to a legitimate government interest in preventing disruption of essential government services and strikes by those unions.
Court’s Ruling: “While the court concludes that the carving out of public safety employees under the Act is rationally-related to a legitimate government interest in avoiding disruptions by those employees, at least facially, 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.”
Bottom Line: In the court’s view, the state was able to articulate a rational basis for this provision of the law, so it was not struck down. Inasmuch as Act 10 has galvanized the state and captured the attention of the nation, the battle now shifts to the political process for resolution.
Unprecedented requirement for an annual recertification by an absolute majority of union members: This provision utterly flunked constitutional review. Court’s Ruling: The court could not posit “how an annual absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose.” “It would be remiss not to at least note the likely burden the annual recertification process imposes on members’ speech and association rights. Indeed, as it works a direct burden on general employee unions, its discriminatory application appears indefensible to a First Amendment challenge. “
Bottom Line: Recertification is unconstitutional because it is irrational, and because it strips Wisconsin workers of fundamental First Amendment rights.
Prohibition on deducting voluntary dues from a general public employee paycheck: Because dues are used to fund speech, including political speech, Act 10’s barring of the most efficient way to pay dues necessarily diminishes speech. A burden on speech is subject to heightened scrutiny. Under Act 10, public safety employees and their unions gained greater access to dues and thus to speech than did general employees and their unions. In defense of it’s position, the state claimed that there was no evidence of differing viewpoints between public safety unions and general unions.
Court’s Ruling: In striking down this clause the court found that “The fact that none of the public employee unions falling into the general category endorsed Walker in the 2010 election and that all of the unions that endorsed Walker fall within the public safety category certainly suggests that unions representing general employees have different viewpoints than those of the unions representing public safety employees. Moreover, Supreme Court jurisprudence and the evidence of record strongly suggests that the exemption of those unions from Act 10’s prohibition on automatic dues deductions enhances the ability of unions representing public safety employees to continue to support this Governor and his party.”
Bottom Line: The denial of the right to dues withholding was an unconstitutional encroachment on fundamental rights. Union members can have their dues deducted from their paychecks.
Prepared by Susan M. French
OPEIU International Representative