Divided Appeals Court Rejects Challenge To Wisconsin Bargaining Restrictions

In 2011, the Wisconsin Legislature passed Act 10, a bill proposed by recently-elected Governor Scott Walker. Act 10 significantly altered the state’s public employee labor laws, creating two distinct classes of public employees – a select group of “public safety employees” with the remainder classified as “general employees.” Among other things, the Act prohibited general employees from collectively bargaining on issues other than “base wages,” imposed rigorous recertification requirements on them, and prohibited their employers from deducting union dues from paychecks. The Act did not, however, subject public safety employees or their unions to the same requirements; they kept the same rights they had under the pre-Act 10 scheme.

A divided federal appeals court recently upheld the constitutionality of Act 10 in the face of a series of challenges filed by unions representing general employees. The unions attacked three provisions of the statute – the limitations on collective bargaining, the recertification requirements, and a prohibition on payroll deduction of dues – under the Equal Protection Clause. They also challenged the payroll deduction provision under the First Amendment. Two of the Court’s three judges voted to uphold the entirety of Act 10; a third judge would have upheld the trial judge’s ruling that the “dues deduction” and “recertification” requirements of Act 10 violated the First Amendment.

The Court majority first found that Act 10’s payroll deduction prohibitions did not violate the First Amendment. The Court found that “the Supreme Court has settled the question: use of the state’s payroll systems to collect union dues is a state subsidy of speech that requires only viewpoint neutrality. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009). Admittedly, the unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint-neutral law. Consequently, Act 10’s prohibition on payroll dues deduction does not violate the First Amendment.

“The Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. While the First Amendment prohibits placing obstacles in the path of speech, nothing requires government to assist others in funding the expression of particular ideas, including political ones. Thus, even though publicly administered payroll deductions for political purposes can enhance the unions’ exercise of First Amendment rights, states are under no obligation to aid the unions in their political activities.”

The unions argued that Act 10 facially discriminated on the basis of viewpoint because general employee unions and public safety unions will necessarily espouse different viewpoints. The Court was unconvinced, holding that “the mere fact that, in practice, the two categories of unions may express different viewpoints does not render Act 10 viewpoint discriminatory. The two groups here are no more likely to express different viewpoints (and the government subsidy no more likely to advantage a particular viewpoint) than the speaker-based distinctions sanctioned in prior cases. Indeed, the unions’ argument proves too much: if different speakers necessarily espouse different viewpoints, then any selective legislative funding decision would violate the First Amendment as viewpoint discriminatory. Such an interpretation of the First Amendment would leave legislatures with the unpalatable choice of funding all expressive activity or none at all.”

The Court also found constitutional the limitations over what could be bargained, concluding that “Wisconsin could rationally believe that Act 10’s passage would result in widespread labor unrest, but also conclude that the state could not withstand that unrest with respect to public safety employees. 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. And experience has borne out the state’s fears: in the wake of Act 10’s proposal and passage, thousands descended on the state capital in protest and numerous teachers organized a sick-out through their unions, forcing schools to close, while the state avoided the large societal cost of immediate labor unrest among public safety employees. Wisconsin was free to determine that the costs of potential labor unrest exceeded the benefits of restricting the public safety unions.”

Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640 (7th Cir. 2013).

Note: Those who think politics play no role in court decisions need look no farther than this case. The federal trial court judge originally hearing the case and the dissenting judge on the Appeals Court were both appointed by Democratic presidents. The two Appeals Court judges voting to uphold the constitutionality of the entirety of Act 10 were appointed by Republican presidents.