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  • InsideTrack
  • October 17, 2012

    Uncertainty over Act 10 Continues Following 'Unconstitutional' Decision: Author Reviews Central Legal Issues

    Timothy D. Edwards

    Timothy EdwardsOct. 17, 2012 – In a highly publicized opinion, a Dane County Circuit Court judge recently declared that Gov. Scott Walker’s restrictions to the collective bargaining rights of specific governmental employees contained in Act 10 are unconstitutional. While the court’s decision is not the last word on this politically charged topic, it provides an excellent roadmap of the central legal issues surrounding Act 10, including its controversial restriction on collective bargaining. The Wisconsin Supreme Court, which has already upheld Act 10 on other grounds, may overrule some, if not all, of the circuit court’s decision, resulting in continued uncertainty regarding collective bargaining for public unions in Wisconsin. This short article provides an overview of the key issues involved in the decision, along with its central holdings.

    Key Issues

    Act 10 includes several provisions that curtail, and in some instances eliminate, the right of specific categories of employees to engage in collective bargaining, deduct dues for general employee unions, obtain wage increases over the cost of living, and obtain certification. Act 10 also limits “fair share” dues agreements (an agreement that all members of a bargaining unit pay a proportionate share of the costs of bargaining to public safety and transit unions. Finally, Act 10 prohibits the city of Milwaukee from making pension fund contributions that represent the employees’ share. These specific provisions are the most controversial provisions in Act 10, and they have generated a heated disagreement about the proper role of public sector unions in Wisconsin.

    Politics aside, the parameters of this role are subject to constitutional protections. In the Dane County proceeding, the circuit court was asked to determine whether specific provisions of Act 10 violated the employees’ rights of free speech, association, and equal protection under the Wisconsin Constitution. In addition, the court was asked to decide whether the prohibition on the city of Milwaukee from making the employee’s share of pension fund contributions is an impairment of contracts and violation of due process under the Wisconsin Constitution.

    Anti-Collective Bargaining Law Struck as   Unconstitutional

    The court specifically concluded that provisions of Act 10 that restrict collective bargaining, limit the right to deduct dues for general employee unions, limit the right to obtain wage increases over the cost of living, restrict “fair share” agreements, and restrict certification violate the employees’ rights of free speech, association, and equal protection. These provisions, which cut to the heart of Gov. Walker’s anti-union initiative, are now null and void. In addition, the court held that the prohibition on Milwaukee’s ability to match pension fund contributions was unconstitutional, because it constituted a “local affair” beyond the purview of state regulation.

    The core of the court’s opinion relates to the restrictions on collective bargaining, and associated rights, such as certification, fair share agreements, deducting dues from wages, and so on. While the court recognized that there is no constitutional right to engage in collective bargaining, it also recognized that the government cannot make the surrender or restriction of a constitutional right a “condition” of this right when it is affirmatively conferred. Here, the state has imposed “significant and burdensome restrictions” on employees who choose to associate in a labor organization without justification and, as such, violated the Wisconsin Constitution.

    The court also concluded that these provisions of Act 10 violated the equal protection clause because they singled out for disparate treatment employees who chose to belong to unions. In an interesting legal move, the court applied “strict scrutiny” because of the infringement on the employees’ fundamental right to speech and association, and concluded that the classifications in question violated the equal protection clause. In reaching this conclusion, the court observed that the state conceded the disparate treatment and failed to provide a legitimate justification for the differing treatment of union versus nonunion employees.

    The discussion about Act 10 and collective bargaining is far from over, both in the court system and the ongoing, political dialogue. After Act 10 was struck down, at least in part, Gov. Walker immediately called the decision the work of a “liberal activist judge.” The Walker administration has vowed that it will continue to enforce Act 10 until the next appeal is decided, signaling an immediate fight over the effectiveness of this decision. Although the courts will have the last word on these issues, the question for Wisconsin is whether that last word will be tainted by partisan influences or based on an objective application of the law.

    About the Author

    Timothy D. Edwards, Wayne State 1989, is a partner at Axley Brynelson LLP, Madison. He is chair of the firm’s electronic discovery and record management team.

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