Wisconsin Bargaining Law Doesn't Breach Unions' Constitutional Rights, Court Affirms

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By Kevin P. McGowan  

April 18 -- A controversial Wisconsin law enacted in 2011 that provides most public employee unions can bargain with state and local government employers over base wages only and eliminates payroll deductions for union dues doesn't violate the unions' First Amendment or 14th Amendment rights, the U.S. Court of Appeals for the Seventh Circuit ruled April 18.

Affirming a district court judgment in favor of Gov. Scott Walker (R), the Seventh Circuit said Wisconsin's Act 10, which bars state and local government employers from bargaining with unions over matters other than base wages, doesn't violate the unions' First Amendment right of association or right to petition government for redress of grievances.

Laborers Local 236 and American Federation of State, County and Municipal Employees Local 60 also lack a 14th Amendment equal protection claim based on Act 10's creation of a regime that allegedly disadvantages union-represented employees compared with individual government employees who “choose to go it alone,” the appeals court said.

Unions have filed several legal challenges to Act 10 since it was enacted in early 2011 amid contentious debate in the Wisconsin legislature and demonstrations outside the statehouse in Madison (48 DLR A-8, 3/11/11). But the unions have yet to prevail in any of those cases.

The Seventh Circuit in 2013 previously rejected a separate constitutional challenge to Act 10 filed by the state union representing Wisconsin teachers (Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640, 2013 BL 15666 (7th Cir. 2013); 14 DLR A-1, 1/22/13).

The state courts likewise have rejected legal challenges to Act 10, but the Wisconsin Supreme Court currently is reviewing Madison Teachers Inc. v. Walker, which raises state law challenges to the law (80 DLR A-14, 4/25/13; 116 DLR A-15, 6/17/13).

Lawyers representing Laborers Local 236 and AFSCME Local 60 said they must confer with their clients, but their next step could be a petition for Seventh Circuit en banc review.

Meanwhile, the Wisconsin attorney general's office called the decision a victory for state taxpayers.

“This ruling, once again, supports the rule of law and recognizes the diligence and hard work of our lawyers in defending Act 10,” Wisconsin Attorney General J.B. Van Hollen said in an April 18 statement. “I look forward to a successful resolution of the few remaining challenges to this important law.”

Unions' Lawyers Decry Ruling

Katie Lounsbury, one of the Madison, Wis., attorneys who represented the unions, said the opinion suggests the Seventh Circuit decided the case based on an argument the state didn't itself raise.

She referred to the panel's reasoning that the First Amendment's right to petition doesn't encompass a right to have the government listen. The state's lawyers only discussed the state's right not to listen rather than claim Act 10 prohibited municipalities and other local government employers from engaging in even voluntary collective bargaining, said Lounsbury, a partner with Ehlke Bero-Lehmann & Lounsbury.

Bruce Ehlke, who argued the unions' case before the Seventh Circuit, said the court's decision is “very disappointing.” At oral argument, at least one member of the appeals court panel “appeared to recognize” the harm inflicted to First Amendment rights by Act 10, Ehlke said.

“Surely the line between constitutionality is not drawn according to how open a state decisionmaker is to what you have to say,” Judge Flaum wrote. “Without a principle to delineate the amount of solicitude the Constitution requires of state officials, the federal courts should steer clear.”  


Act 10 puts in place “a very totalitarian concept” that even if a local government employer wants to engage in broad collective bargaining with a union representing its employees, the state “affirmatively says” the local entity can't do so, Ehlke said.

The state effectively is saying to public employees represented by unions “we're barring the local government from listening to you,” Ehlke said.

It's “hard to imagine” any other group of citizens petitioning their local government could be subject to such restrictions without running afoul of the First Amendment, he said.

Government Must Not Listen

Act 10 amended Wisconsin's State Employment Labor Relations Act and Municipal Employees Labor Relations Act to require state and municipal employers to bargain collectively with unions representing their “general employees” only over base-wage increases.

Act 10 also added a new state code Section 66.0508 (1m) providing that if a local government had an ordinance or resolution in place “inconsistent” with the collective bargaining restriction, the local “ordinance or resolution does not apply and may not be enforced.”

The Laborers and AFSCME locals argued the latter provision violated their First Amendment right to petition government for redress of grievances because even if local governments in Wisconsin want to collectively bargain over topics broader than wage increases, Act 10 bars them from doing so.

Organizations other than unions that petition local governments remain free to discuss any topic with the local government but Act 10 singles out unions for restrictions on First Amendment rights, the unions argued.

But the Seventh Circuit said Section 66.508 (1m) doesn't proscribe any conduct by unions themselves, but rather tells local government employers they “may not enter into binding agreements with their employees on a collective basis about anything other than base wages.”

The district court rejected the unions' First Amendment arguments on the grounds that Wisconsin public employees “remain free to associate and their unions remain free to speak; municipal employers are simply not allowed to listen” (177 DLR AA-1, 9/12/13).

“We agree with the district court that under Supreme Court precedent, such a law is constitutional,” Judge Joel M. Flaum wrote for the Seventh Circuit.

Supreme Court Precedents Control

In Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463, 101 LRRM 2091 (1979), the Supreme Court said the First Amendment “does not impose any affirmative obligation for the government to listen or to respond” to a union or other employee association presenting grievances, the Seventh Circuit said.

Although Laborers Local 236 and AFSCME Local 60 acknowledged Smith prevents them from asserting an entitlement to a mandated collective bargaining procedure, they argued Act 10 goes a step further by precluding state and municipal employers from bargaining over anything but wages.

Wisconsin can't constitutionally deny municipal employers their ability to “choose whether to listen,” the unions said.

“In short, the unions claim a First Amendment right to ask their public employers to bargain, knowing that the employers could (but need not) accept their invitation,” the court said.

But the Supreme Court decision in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 115 LRRM 2785 (1984), forecloses the unions' argument, the Seventh Circuit said.

In Knight, the Supreme Court rejected the claim of community college instructors who chose not to join a union that Minnesota violated their First Amendment rights by restricting a “meet and confer” procedure on “non-mandatory topics” of bargaining to the union as the employees' exclusive bargaining representative, the appeals court said.

The Supreme Court in Knight said “nothing about the plaintiffs' status as public employees gave them a greater entitlement to a receptive audience--or any audience at all--with the state,” the Seventh Circuit said. “Accordingly, the [Supreme] Court reaffirmed the principle from Smith, and held that the instructors 'have no constitutional right to force the government to listen to their views.' ”

Those Supreme Court rulings “direct our outcome here,” the appeals court said. They establish the First Amendment right to petition includes no requirement that the government respond, or even listen to, the petitioners, the court said.

The unions argued the ability of municipal employees to engage in collective bargaining with their public employees in an effort to reach “voluntary agreement” on their wages and other conditions of employment is a “fundamental right” under the First Amendment, the court said.

But the Seventh Circuit said it's “skeptical” such a First Amendment right exists or “could be recognized going forward.” It questioned how such a right would “operate in practice” as municipal employers free to bargain collectively are presumably also free not to bargain.

Act 10 puts in place “a very totalitarian concept” that even if a local government employer wants to engage in broad collective bargaining with a union representing its employees, the state “affirmatively says” the local entity can't do so, union attorney Bruce Ehlke said.  


“Surely the line between constitutionality is not drawn according to how open a state decisionmaker is to what you have to say,” the court said. “Without a principle to delineate the amount of solicitude the Constitution requires of state officials, the federal courts should steer clear.”

“We therefore conclude that Act 10's prohibition on collective bargaining does not run afoul of the [First Amendment] Petition Clause,” the court said.

Judges Ilana Diamond Rovner and Virginia M. Kendall joined in the decision.

No Violation of Association Rights

The unions argued Act 10 also violates their First Amendment rights to association by making it more difficult to achieve their members' interests through collective bargaining. Public employees also will find the prospect of joining unions less attractive now that the law limits collective bargaining to base wages, the unions argued.

“In the unions' view, this diminished support--exacerbated by Act 10's stringent recertification requirements, its prohibition on automatic payroll deductions, and its prohibition on fair-share agreements--will necessarily 'undermine the ability of the labor organization to continue to function,' ” the Seventh Circuit said.

But the First Amendment “does not require the state to maintain policies that allow certain associations to thrive,” the court said.

Act 10 only “acts upon the state” by circumscribing state and local employers' ability to act in certain ways or adopt certain procedures that in the past were beneficial to unions representing public employees, the court said.

Nothing in Act 10 prevents public employees from joining unions or unions organizing or representing such employees, the court said.

“We take the plaintiffs' point that Act 10 will likely have the effect of making things more challenging for general-employee unions,” the court said. “But this type of 'impairment' is not one that the Constitution prohibits.”

The unions also lack a 14th Amendment equal protection claim because Wisconsin is not treating public employees differently based on their exercise of associational rights, the court said.

“[W]e stress that Act 10 does not mandate any form of unfavorable treatment for union members,” the court said. “Those employees still possess every right, and are given every opportunity, that the state grants their colleagues who elect not to join a union. It's just that Wisconsin has refused to participate in an activity that the represented employees want the state to engage in.”

“That is Wisconsin's choice to make,” the court said. “The association 'right' does not compel public employers to sit down with whomever an employee may wish to represent them.”

Steven C. Kilpatrick of the state attorney general's office in Madison represented the governor.


To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/LABORERS_LOCAL_236_AFLCIO_et_al_PlaintiffsAppellants_v_SCOTT_WALK/1.