This article appears in the June issue of our monthly newsletter, Public Safety Labor News.

In 1959, Wisconsin became the first state to recognize the right of public employees to collectively bargain. In 2011, with the support of newly-elected Governor Scott Walker, the Wisconsin Legislature passed what was known as the “Budget Repair Bill.”

The Bill created of two new classifications of public employees: “General” and “public safety.” Under the Bill, the State left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights.

A group of unions representing general employees filed a federal court lawsuit challenging three of the changes brought about by the Bill: (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.

The unions argued that the different treatment given general and public safety unions violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Since the Bill did not impact a “suspect classification” such as race or religion, the unions were required to prove that there was no “rational basis” for the general and public safety classifications “other than the award of naked political patronage” – the primary beneficiaries of the “public safety” classification being unions who publicly and monetarily supported Governor Walker’s November 2010 election. With respect to the dues deduction elements of the Bill, the unions were required to show that the prohibition on automatic dues withholding for members of general employee unions violated the free speech guarantees of the First Amendment.

In summary, the Court found that the unions could not meet their burden of proof with respect to most of the Bill, and that they could not show that the Bill’s principal provisions limiting the collective bargaining rights of general employees and their unions had no “rational basis.” The Court found that “the State, however, has not articulated, and the Court is now satisfied cannot articulate, a rational basis for picking and choosing from among public unions, those (1) that must annually obtain an absolute majority of its voluntary members to remain in existence or (2) that are entitled to voluntary assistance with fundraising by automatic deduction, at least not a rational basis that does not offend the First Amendment. So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights.”

The Court started its opinion with a description of the restrictions on the collective bargaining rights of general employees. Under the Bill, unions representing general employees are no longer permitted to bargain collectively over a broad array of topics related to wages, hours, and conditions of employment. Instead, collective bargaining is limited to “only total base wages and excludes any other compensation, which includes, but is not limited to, overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay progressions. Moreover, unions representing general employees are specifically prohibited from negotiating fair-share agreements whereby non-union members pay the unions for the benefit of their collective bargaining efforts. These restrictions do not apply to public safety employees.

“Second, once any collective bargaining agreement in effect at the time of the Bill’s enactment has expired or terminated, unions representing general employees must submit to recertification each year. At least 51 percent of all general employees in the collective bargaining unit must vote to recertify – an absolute majority. This annual recertification requirement differs from the prior law, which still applies to public safety employees, in at least two important respects. As an initial matter, no recertification elections are required at any time unless 30 percent of all general members vote for decertification. Even if an election is called for, a public safety union is recertified if it obtains 51 percent support from those members who actually vote – a simple majority. Third, employers are prohibited from deducting union dues or fair-share fees from the payroll checks of general employees.”

With respect to the “equal protection” claim, the Court found that “there is no dispute that a state may bar its public employees from engaging in any form of collective bargaining. The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category. The answer to that question is surely ‘yes,’ provided the classifications do not involve a suspect class and a rational basis exists for a state’s line drawing. Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting 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.

“As an initial matter, providing basic, emergency services is a core governmental function. While the unions point out that some police employees (e.g., the Capital Police and University of Wisconsin Police) and many other statutorily-recognized protective occupation employees were classified as general employees – arguably subjecting the public to increased risk of strikes, work stoppages or other disruptive actions in response to their loss of bargaining rights – this alone does not undermine the express purpose of the Act under a rational basis review. Wisconsin’s Governor and Legislature may have concluded that they would extend full bargaining rights to those public unions representing members performing only the most essential functions for maintaining public safety – a political judgment left to those branches of government. The fact that many of these same unions may coincidentally – or as plaintiffs persuasively argue, even strategically – be the most supportive of the party in power at the time of enactment is not enough to heighten the court’s legal scrutiny.”

The Court then turned to the requirement that general employee unions be annually recertified. Here, the Court found, no rational basis could be posited for the Bill: “The Court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants’ failure to articulate and this Court’s inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose. Unlike the concern over work stoppages by public safety employees restricted as to their bargaining rights, the requirement for annual proof of support by an absolute majority of union members applies only to general employee unions who are unable to compel any participation of any employee in its union activities, even the payment of a fair share fee. The only right granted this union is to bargain collectively on an adjustment in base pay. Even if this Governor and the Legislature had a reasonable concern that this remaining bargaining right might be abused, the concern is not rationally advanced by an unprecedented burden on a voluntary union’s right to continue to exist from year to year. On the contrary, it seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law.”

Finally, the Court found that the ban on dues deductions for general employee unions violated the free speech guarantees of the First Amendment. The Court noted that “union members engage in expressive activity by joining a union. Associations, including unions, provide an opportunity for like-minded persons to pool their resources in furtherance of common goals. The Supreme Court has long-recognized that the First Amendment is implicated when dissenting public employees are required to fund union activities, including speech. So, too, the payment of dues – some of which specifically fund political activity – constitutes an expressive activity.

“Under the Bill, general employees may still pay voluntary dues and their unions may still engage in speech, including political speech. In that way, the Bill does not prohibit general employee unions’ or their members’ speech, but it does bar the most efficient method by which these unions collect and their members pay dues.

“Selectively prohibiting public employers from providing this service 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. Moreover, the fact that unions can create alternative means to collect dues does not ameliorate this restriction.

“Unions themselves are inherently political, organizing to give collective voice for bargaining with governmental employers, as well as educating the public and advocating to politicians and the government, and participating in elections. Indeed, as discussed, a whole body of case law has grown up around the union’s role as speaker, though in the main to protect the dissenting members of a legally-sanctioned union shop from having their mandatory dues supplement the speech of the majority. The Bill was enacted in the maelstrom of a political sea change in Wisconsin, the Bill itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether 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 then, it has that appearance.

“The State proffered no justification for the ban on dues deductions from paychecks. One might turn to the justification already discussed in the Equal Protection context – that extending the ban further would result in protests from public safety unions – but that plays even less well in the First Amendment context, which typically would require the government to proffer a reason justifying its decision not to extend the same subsidy to the disfavored speaker. Absent evidence of viewpoint discrimination, perhaps it is enough that the State of Wisconsin merely chose a dividing line between two classes of unions and applied it evenhandedly, but the Court has difficulty with that result where the only apparent reason for discriminating between the entities is their different viewpoints.”

Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856 (D. Wis. 2012).