Joel M. Flaum
A federal appeals court today handed Wisconsin Gov. Scott Walker another victory in the battle over a state law that stripped many public employees of most of their union rights.
The 7th U.S. Circuit Court of Appeals rejected the argument that it violates the U.S. Constitution to bar municipalities from entering into collective-bargaining agreements with certain employees concerning anything other than their base wages. Such a policy blocks workers from the right to negotiate over work hours and conditions.
The court held the restrictions proposed by Walker and enacted by the Wisconsin legislature pass muster under the First Amendment and the equal protection clause.
Under that circumstance, the court continued, the restrictions on so-called “general employees” — those who do not hold public safety jobs such as police officers and firefighters — do not infringe on the rights of either the employees or the unions that represent them.
The ruling marked the second time Walker, a Republican whose successful bid to roll back union rights sparked controversy, has prevailed on the issue before the 7th Circuit.
The rollback was contained in Act 10, a statute enacted in 2011.
In addition to restricting collective bargaining involving general employees to the matter of base wages, Act 10 prohibits the government entities employing those people from deducting union dues from their paychecks.
Act 10 also requires the unions representing general employees to hold elections each year to be recertified.
Public safety employees retain the same union rights they previously held.
In a 2-1 ruling last year, the 7th Circuit upheld the restrictions on general employees in a challenge brought by seven unions. Wisconsin Education Association Council v. Walker, 705 F.3d 640 (7th Cir. 2013).
In a separate suit, two unions and a union member raised other arguments against Act 10.
But Chief U.S. District Judge William M. Conley of the Western District of Wisconsin granted judgment on the pleadings in favor of the state.
In affirming Conley’s decision today, a three-judge panel of the 7th Circuit rejected the argument that Act 10 infringes on the First Amendment right to petition the government for redress of grievances.
Nothing in the statute, Judge Joel M. Flaum wrote for the panel, “precludes the unions or their members from expressing their views to their municipal employer or from trying to persuade the employer to adopt a particular policy.”
U.S. Supreme Court precedent — Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979), and Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) — merely holds that public employees do not have a constitutional right to force their employer to listen to those views, Flaum wrote.
The panel also rejected arguments that Act 10 violates the unions’ First Amendment right to association.
Wisconsin law affirmatively protects the right to form unions and to participate in union activities, the panel wrote.
The panel rejected the argument that Act 10’s restrictions on collective bargaining violate the equal protection clause by making a distinction between public employees who are represented by unions and those who are not.
All public employees — union members and their non-union counterparts alike — have the same rights, the panel wrote.
“It’s just that Wisconsin has refused to participate in an activity that the represented employees want the state to engage in,” Flaum wrote. “Wisconsin has chosen to recognize individual employees as appropriate bargaining partners for municipal employers, but not union representatives.”
Joining the opinion were Judge Ilana Diamond Rovner and U.S. District Judge Virginia M. Kendall, who sat on the 7th Circuit by designation. Laborers Local 236, AFL-CIO, et al. v. Scott Walker, et al., No. 13-3193.
Bruce F. Ehlke of Ehlke, Bero-Lehmann & Lounsbury S.C. in Madison, Wis., argued the case before the 7th Circuit on behalf of the unions and the union member.
“It’s disappointing,” Ehlke said. “What I’m trying to understand here is how they can say the state can select any group of people and say that their government — their local government — is barred from reaching any kind of agreement with them on any matter.”
The ruling could open the way for state legislators to bar negotiations between a willing municipality and other groups, he said.
For example, he said, the state could pass a law prohibiting municipalities from working with neighborhood associations over such matters as a request for a crosswalk.
“That just seems to me to totally undermine our whole concept of democracy,” Ehlke said. “That’s what they’ve done here, and the 7th Circuit has said that’s OK.”
Steven C. Kilpatrick of the Wisconsin attorney general’s office argued the case on behalf of Walker and the current or former members of the Wisconsin Employment Relations Commission named as defendants in the suit.
In a statement, Wisconsin Attorney General J.B. Van Hollen described the panel’s ruling as “a victory for the law and for Wisconsin taxpayers.”
“This ruling, once again, supports the rule of law and recognizes the diligence and hard work of our lawyers in defending Act 10,” he wrote. “I appreciate the court’s work. I look forward to a successful resolution of the few remaining challenges to this important law.”