Federal Appeals Court Upholds Wisconsin Law Curbing Public Unions

By Mark Walsh — January 18, 2013 2 min read
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A federal appeals court on Friday upheld a Wisconsin law curtailing the collective-bargaining rights of public-employee unions, including the teachers’ unions.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled in a challenge to the measure brought by the Wisconsin Education Association Council, an affiliate of the National Education Association, and several other public-employee unions in the state.

The court weighed Act 10, which was championed by Republican Gov. Scott Walker and passed in 2011 amid rancorous debates and protests. The law distinguishes between “general” public-employee unions (including the teachers’ unions) and “public-safety” unions representing many law-enforcement personnel and firefighters. Most of the public-safety unions supported Gov. Walker’s election in November 2010.

Wisconsin lawmakers subjected the general unions to measures that limit the scope of collective bargaining to annual wage increases and require annual recertification by a majority of union members. The measure also bars the voluntary withholding of union dues from the employee’s government paycheck. The law also requires general unions to hold annual recertification elections, with approval by an absolute majority necessary and not just of those voting. The law also bars the withholding of union dues from the paychecks of general public-employee unions.
The rights of public-safety unions were left unchanged.

In its Jan. 18 decision in Wisconsin Education Association Council v. Walker, the 7th Circuit court panel unanimously upheld the collective-bargaining curbs and the annual recertification elections. The panel voted 2-1 to uphold the bar on payroll deductions for dues for the general unions.

In his opinion for the court, U.S. Circuit Judge Joel M. Flaum said the prohibition on payroll deductions does not limit the general unions’ speech and thus does not violate their First Amendment rights. The fact that the public-safety unions may continue to use such deductions amounts to permissible state subsidization of their speech.

“Nothing in the Constitution requires the government to subsidize all speech equally,” Judge Flaum said.

The court also found no violation of the 14th Amendment’s equal-protection clause through its disparate treatment of general and public-safety unions. “As unfortunate as it may be, political favoritism is a frequent aspect of legislative action,” the judge said.

Judge David F. Hamilton said the legislature’s distinction between general and public-safety unions “seems flimsy to me,” but the collective-bargaining limits and recertification requirements withstand “rational basis” review.

However, he would have struck down the selection prohibition on payroll deductions.

“It is ... well established under the First Amendment that the public employer may not engage in political or viewpoint discrimination when choosing which payroll deductions are allowed,” Judge Hamilton said.

The practical effect of the 7th Circuit’s ruling is a bit unclear because in a separate challenge to the law in the state courts, a state judge ruled that Act 10 was unconstitutional because it burdened the First Amendment speech and associational rights of the general union members.

Gov. Walker issued a statement calling the ruling “a victory for Wisconsin taxpayers.” There was no immediate reaction from the state teachers’ union.

A version of this news article first appeared in The School Law Blog.