Wisconsin's Collective-Bargaining Limits Upheld in Court
By Jason Stein
Dealing unions yet another legal defeat, a federal appeals court Friday upheld Gov. Scott Walker's tight limits on collective bargaining for most public employees.
The unanimous ruling by the three-judge panel upheld a September decision by U.S. District Judge William Conley in Madison that the law known as Act 10 does not infringe on the constitutional rights of government workers to freedom of speech and association and equal protection under the law.
In essence, the decision by the 7th Circuit U.S. Court of Appeals in Chicago found that Walker's law is constitutional because it targets the actions of government officials, not those of union members.
Act 10 "does not proscribe any conduct by the unions themselves. It does not prohibit the unions from forming. It does not forbid them from meeting. Nor does it prevent the unions from advocating on behalf of their members in any way they see fit," the ruling reads.
What the law does is prohibit government officials from negotiating with most of their employees' unions on anything but wages. Any pay increases negotiated are further limited to the rate of inflation, except where voters approve them by referendum. The law also dictates that unions cannot be recognized by the state or local governments unless 51% of all potential members -- not just those voting -- support the union in annual elections.
Two unions representing local employees throughout Dane County sued in July 2011 in federal court in Madison contending the law violates their rights to freedom of association and equal protection under the law.
In a statement, Republican Attorney General J.B. Van Hollen, called the decision 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," Van Hollen said. "I look forward to a successful resolution of the few remaining challenges to this important law."
Bruce Ehlke, the attorney for the unions, said he needed to review the decision thoroughly and talk with his clients before deciding on whether to appeal to the U.S. Supreme Court.
But Ehlke said the appellate court's ruling should disturb anyone concerned about whether government officials are responsive to public groups such as neighborhood associations. That's because Act 10 forbids officials from making certain responses to union requests, he said.
"It's very disappointing, but it's also very disturbing," Ehlke said. "That concept applies to any group." The appeals court disagreed.
In their lawsuit, the unions noted they could normally ask for raises no greater than inflation under Act 10, while individual employees could seek increases of any size. They argued that differential treatment is unconstitutional, but last fall Conley found it was allowed.
In a similar case in 2012, Conley struck down parts of Act 10, but the U.S. 7th Circuit U.S. Court of Appeals reversed his decision last year and upheld Act 10 in its entirety.
In Friday's decision, the appeals court noted that Act 10 prevents local and state officials from formally bargaining and signing binding agreements with most unions on most subjects. But that doesn't mean government officials can't respond to union concerns in less formal ways, the court found.
"In fact, since Act 10's enactment, some local employers and unions have collaborated informally in order to make changes in the workplace," the ruling reads.
The decision was written by Joel Flaum, an appellate judge appointed by President Ronald Reagan. It was joined by appellate Judge Ilana Rovner, who was appointed by President George H.W. Bush, and by Virginia Kendall, who normally serves as a federal district court judge in northern Illinois and who was appointed by President George W. Bush.
Act 10 remains partially on hold for some unions because of a ruling in a separate case by a Dane County judge. That will be decided by the state Supreme Court.
The legal proceedings are one of the ongoing legacies of Act 10, which in early 2011 prompted massive protests and the departure of Senate Democrats from the state in an unsuccessful attempt to block the measure.
The law was immediately blocked by a judge because of the way legislators passed it, only to be revived three months later by the state Supreme Court. Numerous other legal challenges followed.
Another outstanding union challenge, brought by the Wisconsin Law Enforcement Association, is before a state appeals court but is on hold pending the result of the separate challenge before the state Supreme Court.
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