August 5, 2014
By Steven Wishnia
Holding that workers do not have a constitutional right to collective bargaining, the Wisconsin Supreme Court upheld Gov. Scott Walker’s landmark union-busting law on July 31.
In a 5-2 decision split along partisan lines, the court effectively ended legal challenges to Act 10, the 2011 law that banned public employees from bargaining collectively on any issue other than wage increases that don’t exceed the official inflation rate. The law also prohibits public employers from letting unions collect dues automatically from members’ paychecks or requiring nonmembers to pay a “fair-share fee,” and it mandates that public workers’ unions hold annual recertification elections and pay for them.
The decision was not a surprise, says Sheila Cochran, secretary-treasurer of the Milwaukee Area Labor Council. Wisconsin Supreme Court judges are elected, and the anti-union Club for Growth spent more than $1.2 million to re-elect Justice David Prosser in 2011 and more than $500,000 backing Michael Gableman in 2008—in both cases, more than the candidates spent on their own campaigns.
The Madison Teachers union and Milwaukee’s Public Employees Local 61 had contended that Act 10 violated their constitutional right to freedom of association. They also challenged a related law that prohibited Milwaukee from paying its employees’ share of contributions to their pension fund, saying it violated both the city’s home-rule rights and contracts negotiated with the city. In September 2012, a circuit-court judge in Dane County, which includes Madison, agreed on both counts, and ruled that Act 10’s restrictions on union activity were unconstitutional.
The U.S. Supreme Court has held that people can’t be forced to give up a First Amendment right to obtain a government benefit, the two unions argued, citing a 1955 decision that struck down a federal regulation that barred members of communist groups from living in public housing. They contended that Act 10 forced workers to give up their right to be part of a union in order to negotiate on hours, working conditions, or benefits.
Justice Gableman, who wrote the majority opinion, called that a “false analogy.” He said workers have a constitutional right to form unions, but not to negotiate collectively with their employer.“It is uncontested that it would be constitutional for the State of Wisconsin to eliminate collective bargaining entirely,” he wrote. “Collective bargaining remains a creation of legislative grace and not constitutional obligation.” He contended that Act 10 actually benefited workers, because it gave them the right to “force their employer to bargain over base wages.”
In dissent, Justice Ann Walsh Bradley cited NLRB v. Jones & Laughlin Steel Corp., the 1937 Supreme Court decision that declared workers had a “fundamental right” to organize themselves and “to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer. “Act 10 is clear,” she wrote. “If you have exercised your associational right to organize as a collective bargaining unit, you lose your ability to negotiate over anything other than an increase in base wages up to the amount of inflation. This is the textbook definition of an unconstitutional condition.”
Bradley also accused the majority of dodging the issues the case raised in order to reach the conclusions it wanted. Instead of considering whether Act 10 put an undue burden on workers’ rights to organize, she wrote, they framed the issue as whether the state was required to subsidize union speech. (Justice Gableman said the Supreme Court’s June decision in Harris v. Quinn “clearly signals that fair-share agreements are constitutionally suspect.”) She also charged that in order to rule against the unions on the pension issue, the majority had to “creatively” interpret the Milwaukee workers’ contract.
But Justice N. Patrick Crooks, sometimes considered a member of the court’s liberal minority, concurred with the majority, saying that he thought while Act 10 was unfair—as it “effectively ended meaningful union representation” for many workers—it was not unconstitutional.
As the federal 7th Circuit Court of Appeals has rejected two other challenges to Act 10, Wisconsin’s labor movement is now concentrating on voting and organizing, says Cochran. Specifically, they want to “get rid of Scott Walker” and elect a governor “who will restore collective bargaining.”