Collective bargaining ruling raises right-to-work questions

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Although the Wisconsin Supreme Courts’ ruling on Act 10 pertains only to public employees, a lawyer who challenged the law contends there could be implications for private-sector unions.

The court, in a 5-2 decision released Thursday, upheld the state’s 2011 law that stripped most public workers of the bulk of their collective-bargaining rights. Nick Padway, a lawyer who argued against Act 10 as a representative of Public Employees Union Local 61 of the AFL-CIO, said the ruling gives a strong indication of how the chips would fall if Wisconsin lawmakers introduced “right-to-work” legislation similar to laws passed in other Midwestern states in recent years.

Indiana in February 2012 became the first state in more than a decade to pass right-to-work legislation that prevents private-sector unions from collecting dues from employees who are not members yet still receive union benefits. The law, which has been struck down twice by circuit courts and is scheduled to be defended before that state’s supreme court, was passed amidst protests similar to those that occurred in Madison when lawmakers were debating the legislation that eventually became Act 10.

Indiana also has taken on public-sector unions. Years before considering right-to-work legislation, former Indiana Gov. Mitch Daniels issued an executive order revoking public employees’ collective-bargaining rights.

Other Midwestern states have traveled a similar path. The same year Indiana lawmakers passed their right-to-work legislation, their counterparts in Michigan adopted a similar law.

The Republicans who control the statehouse in Wisconsin, though, have expressed interest in pursuing other priorities. Gov. Scott Walker, who could not be reached by deadline Thursday afternoon, has said that the inevitable fight over any right-to-work bill would be a “huge distraction” from his efforts to bring jobs to Wisconsin.

On Thursday, Wisconsin Assembly Speaker Robin Vos, R-Burlington, said pursuing right-to-work legislation would not be on his list of priorities for the next legislative session should Republicans remain in control of the statehouse following the November elections. He said he supports the principle behind the laws, saying states where workers are not forced to pay union dues are more attractive to employers, but said he is reluctant to disrupt the good relations that now seem to prevail between private companies and represented employees in Wisconsin.

Even so, Paul Secunda, a Marquette University law professor with expertise in labor law, said recent court decisions could create an opening for a change of opinion. Both the Act 10 ruling, he said, and a decision by the U.S. Supreme Court in June suggest that judicial opinion has tilted against public and private unions.

In the case of Harris v. Quinn, the country’s top court ruled 5-4 that home-care workers in Illinois do not have to contribute to a union of which they are not a member. The Wisconsin Supreme Court’s ruling on Act 10 drew in part on the precedent set by the Illinois case.

Secunda said he could see the courts’ general tilt against unions emboldening Walker and his fellow Republicans.

“I would not be tremendously surprised if he changed his tune in 2015,” Secunda said, “based on recent developments.”

But Lester Pines, who represented Local 61 and the Madison Teachers Union in the challenge of Act 10, said lawmakers who try to change union rights in Wisconsin will have to contend not only with state law but also federal. Many of the dealings represented employees have with public employers, Pines said during a conference call Thursday about the Act 10 ruling, are governed by the National Labor Relations Act.

Indeed, the judges who have struck down Indiana’s right-to-work law have ruled that it violates both federal law and the state constitution. The Act 10 decision handed down Thursday, in contrast, mostly dealt with the Wisconsin Constitution.

The justices who wrote the majority opinion in the Act 10 case noted that Wisconsin public employees’ collective-bargaining rights did not originate in a constitutional guarantee, but rather in a 1959 law passed by the state Legislature. For that reason, the justices concluded, lawmakers were free to rescind those rights.

The defeated plaintiffs had argued that a provision of Act 10, one that prevents public employers from bargaining over anything except wage increases, punished union members for exercising their right to associate with others. The justices rejected the argument, though, contending that workers still could join unions.

Because of federal protections for private-sector unions, Padway conceded, lawmakers would have a harder time coming up with a right-to-work law that passes legal muster. But the justices who control the state Supreme Court, he said, gave a strong indication Thursday of where their sympathies lie, not only through the Act 10 decision but through a second ruling that requires voters furnish a photo ID before casting a ballot.

“With this particular makeup on the Supreme Court and if you look at all the decisions that came down today,” Padway said, “you would find a similar result.”

The Associated Press also contributed to this report.