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Seventh Circuit affirms dismissal of Act 10 lawsuit

The Seventh Circuit Court of Appeals this week affirmed the dismissal of a First Amendment lawsuit challenging Wisconsin’s Act 10.

The court released its decision on Thursday, making this the third challenge to Act 10 to be rejected by the Seventh Circuit.

State lawmakers passed Act 10 in 2011 to limit the collective-bargaining power of state employees who weren’t working in public safety or transit. Among other things, Act 10 made it harder for general-employee unions to retain certification as exclusive bargaining agents, prohibited public-sector employees from collectively bargaining with their general employees over anything except base wages and prohibited public employers from deducting union dues from general employees’ paychecks.

The International Union of Operating Engineers Local 139 and two of its individual members filed a lawsuit arguing these provisions violated their First Amendment rights. The district court that took up the complaint ultimately dismissed it and then denied a motion the state Legislature had made to intervene. Both the plaintiffs and the Legislature appealed the decisions to the Seventh Circuit.

The union and two employees argued that Act 10 in effect forces employees to vote “no” on certification questions at times when they in fact simply didn’t want to vote at all. Judge Joel Flaum disagreed, writing that nothing in Act 10 stops members from voting, requires them to vote or directs them on how to vote.

“In sum, plaintiffs-appellants’ allegations regarding Count 1 in their complaint and supplemental briefing do not establish that the claimed injuries to Erickson or Hanrahan are fairly traceable to Act 10’s recertification provision,” Flaum wrote.

The Seventh Circuit also agreed with the district court’s finding that the collective-bargaining count lacked standing. The union said municipal employers had approached Local 139 about providing services related to training, temporary staffing and health benefits. The employers, after the Wisconsin Employment Relations Commission advised them that such agreements would violate Act 10, declined to enter into the proposed deal with the union.

The appellate judges said Local 130 still retains its right to speak and associate freely and declined to reconsider their precedent from Laborers Local 236 v. Walker, an earlier decision about Act 10.

The plaintiffs also asked the Seventh Circuit to reconsider its decision to uphold Act 10’s payroll-deduction prohibition in light of the U.S. Supreme Court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees. The country’s high court then found that unions that had been requiring nonmembers to provide support payments were violating employees’ free-speech rights.

Judge Joel Flaum said that the plaintiffs made a “convoluted attempt” to distinguish the case from precedent in earlier Seventh Circuit decisions and found that the Janus case did not overrule the Supreme Court’s holding that states have no obligation to provide payroll deductions. The Seventh Circuit decided the district court’s previous decision to dismiss the claim was appropriate.

Because the judges affirmed the district court’s dismissal of all three counts, they agreed the Legislature’s motion to intervene was moot.

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