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 Post subject: Judge tosses Wisconsin anti-union legislation
PostPosted: Fri Sep 14, 2012 4:45 pm 
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Joined: Wed Sep 23, 2009 1:29 pm
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MADISON, Wis. (AP) - A Wisconsin judge on Friday struck down the state law championed by Gov. Scott Walker that effectively ended collective bargaining rights for most public workers.

It was not clear if the ruling means the law is immediately suspended. The law took away nearly all collective bargaining rights from most workers and has been in effect for more than a year.

Dane County Circuit Judge Juan Colas ruled that the law violates both the state and U.S. Constitution and is null and void. The ruling comes after a lawsuit brought by the Madison teachers union and a union for Milwaukee city employees.

Walker spokesman Cullen Werwie said he was confident the decision will be overturned on appeal.

"We believe the law is constitutional," said Department of Justice spokeswoman Dana Brueck.

Lester Pines, an attorney for Madison Teachers Inc., did not immediately return a message seeking comment.

The proposal was introduced shortly after Walker took office in February last year. It resulted in a firestorm of opposition and led to huge protests at the state Capitol that lasted for weeks. All 14 Democratic state senators fled the state to Illinois for three weeks in an ultimately failed attempt to stop the law's passage from the Republican-controlled Legislature.

Anger over the law's passage led to an effort to recall Walker from office. More than 930,000 signatures were collected triggering the June recall election. Walker won and became the first governor in U.S. history to survive a recall.

 Post subject: Re: Judge tosses Wisconsin anti-union legislation
PostPosted: Sat Sep 15, 2012 8:45 am 
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Joined: Wed Sep 23, 2009 1:29 pm
Posts: 630
Excerpted from Wisconsin ruling re anti-collective bargaining in
Madison Teachers, Inc. et al. v. Scott Walker, et al:

This lawsuit challenges the constitutionality of statutory changes made by 2011
Wisconsin Acts 10 and 32 (together "the Acts") to collective bargaining, payroll deduction of dues and contributions to pension benefits with respect to municipal employees (including employees of local governments, school districts and special governmental districts. Wis. Stat. §111 .70(l)(i) and U)).1

The plaintiffs are Madison Teachers, Inc., a labor union representing employees of the Madison Metropolitan School District, and one of its members, Peg&,ry Coyne, and Public Employees Local 61, a labor union representing employees of the City of Milwaukee, and one of its members, John Weigman. The defendants are Governor Scott Walker and the three commissioners of the Wisconsin Employment Relations Commission. Below are two sections from the ruling:


Plaintiffs contend that the statutory changes interfere with their associational rights by imposing burdens and penalties upon those employees who are represented by or belong to a union.

The alleged burdens are that the challenged statutes prohibit municipal employers from:

• offering represented employees a base wage increase greater than the cost of living (Wis. Stat. §111.70(4)(mb)2),
• collectively bargaining with represented employees on any factor or condition of employment other than wages (§111.70(4)(mb)1),
• entering into a "fair share" agreement, i.e. an agreement that all members of a bargaining unit, whether they belong to the unit's union or not, pay a proportionate share of the costs of bargaining and contract administration(§111.70(2),
• deducting membership dues for a labor organization from wages of members of a labor organization (§111.70(3g)),

The prohibitions against offering base wage increases above the cost of living or negotiating on other terms of employment do not apply to employees who are not represented by a union. The absolute prohibition on deducting membership dues from wages applies only to membership dues for general employee labor organizations; another clause permits dues deductions for public safety and transit unions under certain conditions.

Other alleged burdens are imposed through the certification process contained in

• The union must undergo an annual recertification election and must pay a fee for each such election.
• The union must petition for the annual election or be automatically decertified
• The union must receive 51% of all employees in the bargaining unit, not just of those voting in the election.
• For 12 months after recertification municipal employees are required to be unrepresented and may not petition for representation.

On March 30,2012 in WEAC, et. al. v. Scott Walker, et al., 11CV428-wmc, the U.S. District Court for the Western District of Wisconsin declared §111.70(4)(d)3.b. unconstitutional and null and void.

Defendants argue that the statutes burden the economic effectiveness of plaintiffs' associational activities, but do not burden plaintiffs' right to associate. The statutes, they argue, only "limit the panoply of collective bargaining privileges afforded Plaintiffs" and do not impair their right to "associate together in the first instance." The changes do not prohibit public employees from associating for the purpose of collective bargaining, or for other purposes, or from writing letters, holding meetings or petitioning the government.

The Wisconsin Constitution guarantees at least the same freedoms of speech and rights of association as the 1st and 14th Amendments to the United States Constitution. Wis. Const. Article I, §§ 3 and 4, Lawson v. Housing Authority of City of Milwaukee, 270 Wis. 269, 274, 70 N.W.2d 605 (1955). "If [a law] violates the 1st Amendment of the U.S. Constitution it follows as a necessary corollary thereby that it also violates either sec. 3 or 4, Art. I of the Wisconsin constitution, or both." !d. at 282. "The holding out of a privilege to citizens by an agency of government upon condition of non-membership in certain organizations is a more subtle way of encroaching upon constitutionally protected liberties than a direct criminal statute, but it may be equally violative of the constitution." Id at 275. Persons, even if they have no right to a legislatively conferred benefit, cannot be required as a condition of receiving that benefit, to surrender constitutional rights, ''unrelated to the purpose of the benefit" or be required "to comply with unconstitutional requirements." !d. at 277-78.

In Lawson the issue was a federal law, the Gwinn Amendment, that prohibited members of"subversive organizations" from being tenants in federally subsidized housing. !d. at 279. In the case of housing, if the law is to be "upheld against the charge that it invades freedoms guaranteed by the First Amendment it must be upon the basis of combating the threat of danger

to the successful operation of public housing projects which might result from the infiltration of such housing facilities by tenants bent upon the overthrow of the government by force." !d. at 284. "Congress may impinge upon the freedoms guaranteed by the First Amendment in order to prevent a substantial evil." Id.

The defendants rely primarily on two cases. In Hanover Twp. Fed'n ofTeachers, Local
1954 (AFL-CIO) v. Hanover Cmty. Sch. Corp., 457 F.2d 456 (7th Cir. 1972), the court noted that certain union activities, such as promoting membership, advocating organization of the union, and expression of the union's views to its members and to the public, were constitutionally protected. !d. at 460. But the court rejected the allegation that tendering contracts to individual teachers while bargaining was under way infringed on the constitutional right of association because all teachers, union and non-union, were offered the same contract. !d. at 462.

In Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 465, 99 S. Ct.
1826, 1828 (1979), the court agreed that public employees were entitled to engage in pro-union activities and were protected from discrimination or retaliation for those activities. However, it held that the requirement that all employee grievances, of both union members and non¬ members, be submitted by the employee (rather than through the union in the case of union members) treated all employees equally and ignored the union, but did not discriminate against its members. !d. at 466. In neither case was there evidence of different treatment because of
union membership.

It is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of a constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program. Lawson, 270 Wis. at 287.

In the same way, when the government elects to permit collective bargaining it may not make the surrender or restriction of a constitutional right a condition of that privilege.

Although the statutes do not prohibit speech or associational activities, the statutes do impose burdens on employees' exercise of those rights when they do so for the purpose of recognition of their association as an exclusive bargaining agent. Unlike in Hanover and Smith, in which all employees were treated the same with respect to the actions at issue, in the statutes at issue, the state has imposed significant and burdensome restrictions on employees who choose to associate in a labor organization. The statutes limit what local governments may offer employees who are represented by a union, solely because of that association. It has prohibited general municipal employees from paying union dues by payroll deduction, solely because the dues go to a labor organization (unlike the restrictions found constitutional in Ysursa v. Pocatello Educ. Assn., 555 U.S. 353, 129 S.Ct. 1093 (2009), which prohibited payroll deduction of dues for any political activities of any organization, regardless of viewpoint, identity or purpose).

Employees may associate for the purpose of being the exclusive agent in collective bargaining only if they give up the right to negotiate and receive wage increases greater than the cost of living. Conversely, employees who do not associate for collective bargaining are rewarded by being permitted to negotiate for and receive wage increases without limitation. The prohibition on fair share agreements means that employees in a bargaining unit who join the union that bargains collectively for them are required to bear the full costs of collective bargaining for the entire

bargaining unit, including employees in the unit who do not belong to the union but receive the benefits of the bargaining. Unions are required to be recertified annually, even if there has been no request for recertification and the full costs of the election are borne by the employees in the bargaining unit who are members of the union. Statutes that burden the exercise of a constitutional right for a lawful purpose and reward the abandonment of that right infringe upon the right just as did the prohibition in Lawson against members of certain associations residing in public housing.

Sections 66.0506, 118.245, 111.70(1)(f), 111.70 (3g), 111.70 (4)(mb) and 1 11.70 (4)(d)3 single out and encumber the rights of those employees who choose muon membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.

These are fundamental rights and the infringement having been shown, the burden shifts to the defendants to establish that the harm done to the constitutional right is outweighed by the evil it seeks to prevent. Because defendants contend there is no infringement of the rights of speech and association, they offer no evidence or argument of the substantial evil the government seeks to prevent by the infringing provisions. Without any evidence or argument that the infringement serves to prevent an evil in the operation of the bargaining system created by the statutes, the court must find the infringement to be excessive and to violate the constitutional rights of free speech and association.


Put simply, equal protection is the constitutional obligation government has to treat people equally when they are similarly situated, unless it has a reason not to. If a fundamental right is affected, the reason must be a very good one.

A challenger on equal protection grounds must show that ''the statute treats members of a similarly situated class differently." Professional Police Association v. Lightbourn, 2001 WI 59, 221, 243 Wis. 2d 512. The courts will usually uphold a statute challenged on equal protection grounds if "a rational basis supports the legislative classification." Jd However,' strict scrutiny, a higher standard, applies when the right affected by the classification is a fundamental right. State v. Smith, 2010 WI 16,12, 323 Wis. 2d 377, 780 N.W.2d 90.

Defendants argue that rational basis scrutiny applies because the statute does not infringe on constitutionally protected rights and the mere allegation of infringement is not enough to invoke strict scrutiny. As explained in Section III, the court has determined that in this case there is such an infringement. As noted above, unlike in Ysursa, the statutes here single out for special requirements and prohibitions, those employees who choose to belong to certain organizations (and those organizations), solely because of the purposes for which the organizations are formed and the employees choose to associate. Strict scrutiny applies, not because the complaint alleged infringement, but because the court has found infringement.

The question becomes is whether the statutes create distinct classes. They do. The two classes are 1) general municipal employees who are represented by a labor organization in bargaining and 2) general municipal employees who are not. Defendants argue that the statute does not create the classification, but rather employees do so by choosing the class to which they will belong. Defendants offer no authority for that position. The argument ignores the facts that the challenged statutes create the classes, the classes are exclusive, and that municipal employees must be in one or the other.

Plaintiffs argue that the employees in the two classes are "similarly situated," i.e. other than the class they belong to under the statute, there is no difference between a represented employee and an unrepresented employee. Defendants contend that the employees are not similar situated because "there is a critical difference between represented and non-represented employees with respect to the budgetary impacts of wage increases." In other words, when negotiating with individual employees an employer can manage its budget more easily because it can offset wage increases for some employees by lower or no increases for others. This is a difference in effect on the employer, not a difference among classes of employees or their jobs. It is perhaps a reason for creating the classes, but not a difference between members of the classes. Defendants offer no other differences between the employees in the two classes, and it is plain that they are similarly situated.

Defendant next argues that §111.70(3g) does not create classifications with respect to payroll deduction for dues because it simply prohibits deductions to one kind of organization, but does not authorize deductions for other organizations. This argument ignores that with respect to payroll deductions, the statutes create three classes of organizations (and employees): general employee labor organizations, public safety and transit labor organizations and all other organizations. The statutes prohibit payroll deduction for dues of general employee labor organizations, allow deductions for dues of public safety and transit labor organizations, and do not regulate payroll deduction of dues for any other kind of organization. These classes are similarly situated and unequally treated.

Because defendants rest on their argument that only rational basis scrutiny applies, they offer no defense of the statute that would survive strict scrutiny, thus conceding that the disparate treatment is unconstitutional when subjected to strict scrutiny.

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