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Collective bargaining ruling raises right-to-work questions

Mary Kay Baum joins hundreds of labor union members at a rally to protest the collective bargaining measures of Wisconsin Governor Scott Walker's administration at the Wisconsin State Capitol Building in Madison, Wis. In a 5-2 ruling Thursday, July 31, 2014, the Wisconsin Supreme Court has upheld the 2011 law that effectively ended collective bargaining for most public workers, sparked massive protests and led to Republican Gov. Scott Walker's recall election and rise to national prominence. (AP Photo/Wisconsin State Journal, John Hart, File)

Mary Kay Baum joins hundreds of labor union members in August 2011 at a rally to protest the collective bargaining measures at the state Capitol in Madison. In a 5-2 ruling Thursday, the Wisconsin Supreme Court has upheld the 2011 law that effectively ended collective bargaining for most public workers, sparked massive protests and led to Republican Gov. Scott Walker’s recall election and rise to national prominence. (AP File Photo/Wisconsin State Journal, John Hart)

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.

Reactions to Wisconsin’s union law being upheld

MADISON, Wis. (AP) — The Wisconsin Supreme Court on Thursday upheld the 2011 law championed by Gov. Scott Walker — known as Act 10 — that effectively ended collective bargaining for most public workers.

The following quotes are reactions to the decision:

Gov. Scott Walker: “Act 10 has saved Wisconsin taxpayers more than $3 billion. Today’s ruling is a victory for those hard-working taxpayers.”

Joe Zepecki, spokesman for Democratic gubernatorial candidate Mary Burke: “Mary supports the right of workers to collectively bargain, and believes that the concessions on health care and pension were fair, but should have been reached through the collective bargaining process. She knows that collective bargaining rights don’t stand in the way of effective, accountable government, and that working together is the best way to address the challenges we face.”

Democratic gubernatorial candidate state Rep. Brett Hulsey: “This partisan decision by a packed GOP state Supreme Court takes away worker’s rights to bargain for a safe place to work. It underscores the need to vote for me in Aug. 12th primary. As governor, I will call a special session of the Legislature on day one to restore workers’ rights, health care and retirement.”

Republican Senate Majority Leader Scott Fitzgerald: “After months of protests and costly recalls that Governor Walker, many of my Senate colleagues and I myself survived to retain control over the Statehouse, I hope that this added legal victory can allow us to finally lay the fight surrounding Act 10 to rest. The people and the courts have spoken: Act 10 is here to stay and Wisconsin is moving in the right direction.”

Republican Assembly Speaker Robin Vos: “Act 10 continues to have a positive impact in Wisconsin. The law has moved Wisconsin forward, billions of tax dollars have been saved, and local governments now have the flexibility needed to balance their budgets. Today we once again hear from the courts that Act 10 is constitutional through and through.”

State Sen. Chris Larson, Democratic Senate minority leader: “Their opinion will continue to negatively impact communities across Wisconsin by limiting the freedom of our hard-working neighbors to negotiate with their employers for fair wages and safe working conditions.”

State Rep. Peter Barca, Democratic Assembly minority leader: “Wisconsin’s proud history of protecting workers rights is marred by Walker and Republicans’ dismantling of collective bargaining for our public sector workers. Today’s Supreme Court ruling is extremely disappointing for the teachers, nurses, prison guards, and other professionals who serve the public each day.”

Wisconsin Manufacturing and Commerce president Kurt Bauer: “Act 10 is a landmark achievement for Wisconsin. It has saved taxpayers billions and it has saved public employee jobs. Act 10 has also helped improve Wisconsin’s business climate by removing the threat of tax and fee increases caused by deficits.”

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.


About Dan Shaw, dshaw@wislawjournal.com

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at dshaw@wislawjournal.com or at 414-225-1807.

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