Unions challenge constitutionality of Act 10

As expected with a new liberal state Supreme Court majority, public employee unions have challenged the constitutionality of a 2011 law known as Act 10 that effectively ended collective bargaining for most Wisconsin state public sector workers.

The law has previously passed muster in conservative courts, but a different outcome could be brewing this time around with 4-3 progressive majority on the court following the election earlier this year of justice Janet Protasiewicz.

Under the law, most public employee unions can only bargain collectively for base wage increases that do not exceed inflation, effectively upending the unions’ bargaining power. It also ended the automatic withdrawal of union dues from employee paychecks.

Among those filing the lawsuit were the Abbotsford Education Association (WEAC/NEA), AFSCME Local 47, AFSCME Local 1215, Beaver Dam Education Association (WEAC/NEA), SEIU Wisconsin, Teaching Assistants Association (TAA/AFT) Local 3220 and Teamsters Local 695. 

The state’s largest teachers union, the Wisconsin Education Association Council (WEAC), contends the law eliminates workers’ freedom to engage in collective bargaining, denies their freedom to negotiate with employers on subjects beyond base wages, and deprives workers of being represented by a union without jumping through what it says are the hoops of burdensome annual recertification elections.

WEAC says the lawsuit is being filed now not because of the recent Supreme court election and a newly minted liberal majority but because of the dire situation that exists in public employee workplaces, including low pay, staffing shortages and worsening working conditions.

Ben Gruber, one of the plaintiffs, said he had worked for 13 years as a firefighter paramedic in Wisconsin where he had the freedom to negotiate.

“However, when I became law enforcement for the Department of Natural Resources, I immediately lost my right to a voice on the job,” Gruber, a conservation warden and president of AFSCME Local 1215, said. “Every single day, I am proud of the work we do to protect the public. We are an essential part of our state’s public safety system, often working in dangerous conditions and making arrests miles away from any backup. We are certified as law enforcement by the same state board, but my co-workers and I are denied the same union rights enjoyed by other public safety personnel. It’s time that public sector workers across Wisconsin have our freedoms restored to us.”

Betsy Ramsdale, a teacher and co-president of the Beaver Dam Education Association, another plaintiff, said WEAC stood with its union partners in restoring negotiation rights.

“For over a decade, the deck has been stacked against educators like me,” Ramsdale said. “Teachers and support staff work in partnership with parents to teach students about compromise and collaboration, but school districts aren’t required to do the same. It’s frustrating and demoralizing, and a huge reason Wisconsin doesn’t have enough staff to meet student needs.”

Point, counterpoint

The lawsuit found a firm footing of support among Democratic lawmakers, among them Senate Democratic leader Melissa Agard (D-Madison).

“My path into state politics was, in large part, because of the wrongdoings that resulted from Act 10, and I am glad that the constitutionality of that law will be reexamined in the courts,” Agard said. “Should Act 10 be ruled unconstitutional, Wisconsinites who have dedicated their lives to public service will once again have a seat at the table that is well-deserved and long overdue.”

Agard said Act 10 had catastrophic ramifications for public sector employees and deviated from Wisconsin’s long history of honoring the rights, labor, and livelihood of workers. 

“Legislative Democrats have been working to reverse the damage done by Republicans since 2011, and we will continue the fight to uplift the lives of working Wisconsinites,” she said. “It is past time that we reinvigorate Wisconsin’s labor movement by restoring the public sector’s collective bargaining rights. I applaud the seven unions, representing our teachers and other public workers, who took the necessary steps to bring this suit forth.”

Over at the conservative Wisconsin Institute for Law & Liberty (WILL), leaders said they would vigorously support what they called critical collective bargaining reforms that were put in place by Gov. Scott Walker.

WILL president and general counsel Rick Esenberg said WILL was founded in 2011, partially in response to the legal challenges to lawful acts of Walker and the Legislature. 

“For the better part of the last 12 years, no piece of legislation has loomed larger in public policy debates in Wisconsin than Act 10, the collective bargaining reform law passed in 2011,” Esenberg said. “The ‘Budget Repair Bill’ introduced by Gov. Scott Walker in the first weeks of his first term represented a fundamental break with the past and a new era for state and local governments in the Badger State and the country.”

Since then, Esenberg said, WILL has been on the forefront of examining the impact of Act 10 on education, the teaching workforce, and puncturing the myths that persist about the law. 

“Now with a new lawsuit, we stand ready to defend the law in the court of law and in the court of public opinion,” he said. “Because make no mistake, an end to Act 10 would have a devastating effect on the budgets of school districts, municipalities, and Wisconsin’s overall fiscal stability.”

It remains to be seen what full repeal of Act 10 would look like, but, back in 2018, WILL’s then executive vice president, CJ Szafir, and its director of public engagement, Collin Roth, wrote a blog for WILL that took a stab at describing such a policy landscape.

“Many will recall that the law was sold as a policy toolbox for state and local governments to weather budget cuts without layoffs, tax hikes, or cuts to essential services,” they wrote. “On that front, the law was extremely successful, netting $5 billion in taxpayer savings in the five years after enactment. This was a result of, not only increased employee contributions but also new freedom for school districts to shop for different types of healthcare plans. Since Act 10, school districts have been free to shop for healthcare benefits and, according to the MacIver Institute, Wisconsin school districts have saved more than $3.2 billion as a result.”

Things would change with repeal, Szafir and Roth wrote.

“Under a full repeal of Act 10, presumably, the cost curve would surely bend upwards for local governments,” they wrote. “Collective bargaining would return. Healthcare and pension contributions would likely be modified. Would the state allow school districts to lift the revenue caps and increase property taxes? Or would the state increase taxes in order to increase spending on K-12 public schools? The answer must be ‘yes’ to one of these questions.”

The filing

In their lawsuit, the plaintiffs argue that, though the stated purpose of Act 10 was to address the state’s projected budget deficit during a temporary economic downturn, the vast majority of the act’s provisions actually targeted Wisconsin public servants who had decided to join together and form labor unions. 

The act fundamentally changed the landscape of Wisconsin’s decades-old system of public-sector labor relations, the lawsuit charges.

“Act 10 achieved this fundamental change by first dividing public employees into two groups — a disfavored class of ‘general’ employees and a favored class of ‘public safety’ employees —a nd then imposing severe burdens on employees in the disfavored group while allowing employees in the favored group to proceed as though Act 10 were never passed,” the complaint states. “The favored ‘public safety’ class consists of certain fire fighters, certain law enforcement officers, and state motor vehicle inspectors, whereas the disfavored ‘general’ employee class consists of all other public workers who had been covered by Wisconsin’s collective bargaining laws before Act 10.”

Significantly, the complaint asserts, the so-called “public safety” class excluded many public servants who perform public-safety functions, like conservation wardens, Capitol Police, and University of Wisconsin Police, among others.

In all, the complaint observes, Act 10’s sea change to Wisconsin’s collective bargaining system contains three main components.

“First, Act 10 virtually eliminates the collective bargaining rights of the disfavored ‘general’ employees while maintaining robust bargaining rights for favored ‘public safety’ employees,” the lawsuit states. “Specifically, Act 10 limits the subjects of bargaining for ‘general’ employees to the single subject of base wages, capped by the consumer price index. Even as to that single subject, the statute restricts any agreement reached to a duration of one year.”

Second, the complaint continues, Act 10 makes it prohibitively difficult for the disfavored class of “general” employees—and only that disfavored class—to engage in collective bargaining. 

“Act 10 does so by subjecting unions representing ‘general’ employees to an annual recertification election,” the complaint states. “In such an election, 51 percent of all employees in the bargaining unit —not simply a majority of those voting — must vote in favor of union representation in order for the union to retain its certification that permits it to represent the employees.”

Third, the plaintiffs claim, Act 10 substantially burdens the ability of employees in the disfavored “general” employee class — and only that disfavored class — to provide financial support for their union’s activities. 

“It does so by prohibiting dues deduction, i.e., the ability for employers to directly deduct union dues from union members’ paychecks and send that money directly to the union,” the complaint states.

Not related

What’s more, the plaintiffs contend, the distinctions that the Legislature drew between “general” employees and “public safety” employees bear no rational relationship to the stated budgetary objectives of the act or to any other legitimate state purpose. 

“These classifications instead bear the hallmarks of unconstitutional distinctions that violate the equal protection guarantee enshrined in Article I, Section 1 of the Wisconsin Constitution,” the complaint states. “Indeed, Act 10’s irrational classifications: Are not based upon substantial distinctions which make one class different from another; Are not germane to the purpose of the law; Are based upon circumstances that existed only at the time of enactment; Are not applied equally or consistently among employees who carry out traditional public safety functions; and Do not provide reasonable support for the vastly different treatment accorded to ‘general’ employees and ‘public safety’ employees under the law.”

Instead Act 10’s irrational classifications closely track the different political endorsements made by public-sector unions in the election immediately preceding Act 10’s passage, the plaintiffs argue.

“Indeed, during the 2010 campaign that led to the election of Scott Walker as governor, only five public employee unions and associations publicly endorsed him, and each of those unions represented workers who are classified in Act 10 as favored ‘public safety’ employees — a classification never before known in Wisconsin law,” the complaint states. “In contrast, employees whose unions and associations did not endorse Governor Walker, including employees in public safety roles, are categorized as disfavored ‘general’ employees.”

Because Act 10’s classifications between favored “public safety” employees and disfavored “general” employees lack a discernible connection to any legitimate governmental objective, the plaintiffs state, and because they reflect the illegitimate objective of punishing the political opponents and rewarding the political supporters of the former governor, the plaintiffs argue the Act’s labor relations provisions violate the equal protection guarantee in Article I, Section 1 of the Wisconsin Constitution, and must be enjoined and declared invalid.

“The fact that Act 10 violates equal protection is further supported by two other provisions enshrined within the Declaration of Rights enumerated in Article I of the Wisconsin Constitution: Section 9 and Section 22,” the complaint declares.

Specifically, the plaintiffs contend, the constitution ensures that the citizens of Wisconsin have their day in court when other procedures and remedies are inadequate. 

“In guaranteeing Wisconsinites that every legal wrong they suffer will have a legal remedy, Article I, Section 9 conveys on the judiciary the role of protecting Wisconsinites’ legal rights,” the complaint states. “This provision ensures that a citizen’s recourse against political punishment is not limited to the cold comfort of seeking redress from the very political branches responsible for inflicting that punishment.”

Likewise, they argue, Article I, Section 22 of the Wisconsin Constitution guarantees that Wisconsin will maintain a free government that works for the people. 

“It accomplishes this guarantee by requiring ‘firm adherence to justice, moderation, frugality and virtue’ and ‘frequent recurrence to fundamental principles,’” the complaint states. “To ensure this constitutional guarantee is enforced, the Court must review the political retribution imposed by Act 10 and conclude that such action was contrary to these fundamental principles.”

Act 10’s fundamental changes to Wisconsin’s decades-old collective bargaining law have made it much more difficult for public servants in the state to exercise their rights to organize into unions and bargain collectively to achieve better terms and conditions of employment, the plaintiffs concluded. 

“Indeed, Act 10 has completely altered the landscape for public-sector unions in Wisconsin — the birthplace of public-sector collective bargaining,” the complaint states. “For example, 983 public-sector unions have sought recertification under Act 10’s anti-democratic regime. Of those 983 public-sector unions, only 318 (32.3%) remained certified and able to bargain collectively by the end of 2021. As a result, …., public servants in Wisconsin have lost union representation and the ability to bargain collectively under Act 10 even where a union receives overwhelming support of all voters in a certification election.”

The complaint states that the action is brought by labor organization plaintiffs who were, are, and aspire to be collective bargaining representatives of state and municipal employees, suing on their own behalf and on behalf of their members. 

“It is also brought by individual public servants who have labored under Act 10’s unconstitutional regime for far too long,” the complaint states.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.