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The give and take of Act 10

By: Dan Shaw, [email protected]//July 31, 2014//

The give and take of Act 10

By: Dan Shaw, [email protected]//July 31, 2014//

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The Wisconsin Supreme Court ruled in a 5-2 decision released Thursday that whatever collective-bargaining rights state lawmakers give out, they can just as easily take away.

In a lead opinion attributed to Justice Michael Gableman, the justices in the majority regularly returned to the idea that even though employees clearly have the right to assemble in unions, employers are under no constitutional obligation to meet with them to bargain over pay, benefits and similar matters. The ruling marks the end of the legal wrangling over Act 10, the 2011 law that stripped most public employees of the bulk of their collective-bargaining rights.

Act 10 has been upheld twice in its entirety by federal courts and once before by the Wisconsin Supreme Court, in a case in which critics questioned whether lawmakers had violated the state’s open-meeting law when passing the legislation.

In the separate case that led to the decision released Thursday, opponents of the law had conceded that nothing in the state or national constitutions requires that employers sit down with employees represented by collective-bargaining units to negotiate employment conditions.

But they argued that, in passing a 1959 law that required employers to engage in collective bargaining with public workers, legislators had established a right. If they wanted to take away that right, the plaintiffs argued, Act 10 should have eliminated collective-bargaining obligations entirely.

The law instead only went part of the way, eliminating employers’ obligation to bargain over every subject except for raises tied to the rate of inflation. In acting that way, the plaintiffs argued, lawmakers had in effect set up a system that punishes employees who exercise their remaining collective-bargaining rights.

The plaintiffs argued the new law established two classes of employees, those that are represented by collective-bargaining units and those that are not. Represented employees are the only ones, though, restricted to bargaining over nothing except raises.

The plaintiffs cited case law establishing the principle that the government cannot withhold benefits as a way of retaliating against citizens, who through the exercise of their constitutional rights, have done something to provoke officials.

In response, the justices in the majority argued that because collective bargaining never was a constitutionally guaranteed right to begin with, lawmakers could not be accused of using Act 10 to punish those who were merely acting in accordance with the constitution.

“No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation,” Gableman wrote for the majority.

The case stemmed from lawsuit filed by the Madison teachers union and a union representing Milwaukee public workers.

Besides restricting collective-bargaining rights, Act 10 also requires public employees to contribute more toward their health insurance and pension costs. A Thursday statement attributed to Gov. Scott Walker praised the ruling and claimed the law has saved taxpayers more than $3 billion, mostly attributable to schools and local governments saving more money because of the higher contributions.

Lester Pines, a lawyer who represented the teachers union, said the decision was not unexpected given the conservative makeup of the court and critical comments the justices made during oral arguments.

But Pines said the length of the legal fight gave unions time to prepare for operating in a post-collective bargaining environment.

“The governor’s desire to destroy the public employee unions has failed,” he said. “We’ll just see new approaches to dealing with employers by the unions. Those will become evident as we go forward.”

Walker introduced the proposal shortly after taking office in 2011, a move that was met with fierce resistance from teachers, other public workers and their supporters who flooded the Capitol for weeks in an effort to block the bill’s passage. Democratic state senators fled the state for two weeks in a failed attempt to block the bill’s passage.

Act 10 bars automatic withdrawals from members’ paychecks and requires annual elections to see if members want their unions to go on representing them. It also required the increased pensions and health care contributions, which Walker has said helped local governments and schools save enough money to deal with other cuts done to balance a state budget shortfall in 2011.

Walker’s opponent for re-election, Democrat Mary Burke, supports the higher contributions. But while she backs restoring collective bargaining, Burke has not promised to work for the repeal of Act 10 if elected.

Walker was forced to stand for recall in 2012, a move largely motivated out of anger over the union law. He won, becoming the first governor in U.S. history to defeat a recall.

The Associated Press also contributed to this report.


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