By Jordan L. Jones
In Laborers Local 236 v. Walker, the Seventh Circuit denied the Union’s challenges that Wisconsin’s Act 10 (1), the controversial amendment to the Wisconsin collective bargaining law. The Union had alleged that the amendments infringed upon their First Amendment petition and association rights and (2) denies Union members the equal protection of the laws ensured by the Fourteenth Amendment.
Act 10, also known as the “budget repair bill,” “divided Wisconsin state and municipal employees into two categories: ‘public safety employees,’ which includes police officers, firefighters, deputy sheriffs . . . and ‘general employees,’ i.e, everyone else.” Under Act 10, the existing protections under Wisconsin law remained for public safety employees but employers of “general employees,” that is state and local employers, only have to bargain with unions over base-wage increases and nothing else. In addition, Act 10 “prohibited municipal employers from collectively bargaining with their general employees about non-wage issues.”
The Union, contended that their First Amendment petition and association rights were infringed upon by Act 10. The Union also argued that its equal protection of the laws guaranteed by the Fourteenth Amendment was violated by Act 10.
Regarding the First Amendment petition argument, the Seventh Circuit looked to 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 for guidance. In Smith, “the Arkansas State Highway Commission refused to recognize employee grievances filed by the union” and only looked at grievances filed by individual employees. The Supreme Court held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” The Seventh Circuit noted that “Smith’s analysis accorded with precedent from our circuit holding that state entities have no constitutional duty to engage in collective bargaining.”
In Knight, the Supreme Court held that “[n]othing in the First Amendment or this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.” The Seventh Circuit stated that:
The fact that the Supreme Court applied Smith’s holding to the distinct facts in Knight directs our outcome here. The union’s complaint is Act 10 bars Wisconsin public employers from voluntarily entering into binding negotiations with a group of employees. But that was the case in Knight as well . . . . We therefore conclude that Act 10’s prohibition on collective bargaining does not run afoul of the Petition Clause.
In regards to the Union’s claim that Act 10 violated their associational rights, the Seventh Circuit held that “nothing in Act 10 prohibits unions from forming, meeting or organizing. To the contrary, Wisconsin affirmatively protects these activities . . . . Again, Act 10 only acts upon the state. The law’s changes prevent public employers from acting in certain ways . . . .”
Finally, the Seventh Circuit rejected the Union’s equal protection claim. The Union argued that “Act 10’s collective-bargaining rules impermissibly disadvantage ‘represented employees,’ i.e., employees who choose to express their grievances by joining a Union, as opposed to ‘individual employees,’ those who prefer to go it alone.” The Seventh Circuit held that:
Wisconsin is not treating employees differently based on the employees’ exercise of their associational rights. At the risk of repeating ourselves, we stress that Act 10 does not mandate any form of unfavorable treatment for union members . . . . It’s just that Wisconsin has re fused [sic] to participate in an activity that the represented employees want the state to engage in . . . .
Editor’s Note (Jim Cline): This ruling was a significant setback for the Wisconsin Unions challenging the amendments to the collective bargaining law, but litigation over the law is still pending. Previously, a Wisconsin Circuit Court, in Madison Teachers v. Walker did find that aspects of the amended statute violated First Amendment association and speech rights. An Appeal on that Ruling appears to still be pending before the Wisconsin Supreme Court, but this Federal Court Ruling may undermine much of that challenge.
Previous Rulings of the United States Supreme Court have indicated that there is no specific right for public employees to engage in collective bargaining. However, those same Rulings, and Rulings of other Courts, have indicated that once a collective bargaining system is set in place, the constitutional Right of Association and Free Speech prohibits public employers from retaliating against employees for the exercise of their collective bargaining rights. Those rights are at the center of this litigation in that the Unions contend the Scott Walker amendments reduce employee rights to a level lower than exist in some cases for nonunionized employees.
