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Constitutional Law — First Amendment

U.S. Court of Appeals For the Seventh Circuit


Constitutional Law — First Amendment

Act 10 does not violate the First Amendment rights of government employees.

“Government line-drawing that does not infringe a fundamental right and is not based on a suspect classification is subject only to rational-basis review. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). However, the unions contend that Act 10’s line-drawing infringes fundamental First Amendment rights. They argue that under Act 10, local governments cannot make binding agreements with a general employee’s bargaining representative regarding most employment terms and conditions—but that local governments are not similarly limited when it comes to their making such agreements with individual employees. This differential treatment of represented employees and individual employees, they argue, amounts to the state punishing the former for exercising their petition and association rights. Accordingly, the unions maintain, strict scrutiny applies, and Wisconsin must put forth a compelling interest for its law and show that it is narrowly tailored to that interest.”

“We must again reject the union’s characterization of the law. 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. These employees still possess every right, and are given every opportunity, that the state grants to their colleagues who elect not to join a union. It’s just that Wisconsin has refused to participate in an activity that the represented employees want the state to engage in. Wisconsin has chosen to recognize individual employees as appropriate bargaining partners for municipal employers, but not union representatives. That is Wisconsin’s choice to make. The association right does not compel public employers to sit down at the table with whomever an employee may wish to represent them.”


13-3193 Laborers Local 236 v. Walker

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Flaum, J.

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