Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill

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Category: Labor & Employment Law, Wisconsin Law & Legal System

The Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker yesterday on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10’s passage continues to have ramifications as Governor Walker was officially subjected to a recall election yesterday (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.

I just read this Act 10 decision and my conclusion is: good, but not great.

Most of Act 10 survives on equal protection grounds, the court buying the Walker Administration’s hard-to-believe argument that it only applies to non-public safety employees, and not public safety officials, because of concerns that public safety employees would be needed if the other public employees went out on strike (even though such strikes would be illegal under Wisconsin law).

Nevertheless, in a clear victory for the public-sector unions in Wisconsin, the onerous recertification and anti-dues check off provisions, which again only applied to non-public safety employees, were enjoined on both equal protection and First Amendment grounds. The court found absolutely no connection between the Walker Administration’s purported justifications for treating these two groups of public employees differently and the need for these two punitive provisions. Indeed, the court goes out of its way to all but say that the Walker Administration passed these provisions as political payback for those public safety unions that supported Walker in the 2010 election.

Special kudos to Joe Slater (Toledo), who was cited twice by the court: once for his contribution to the Marquette Law Review Symposium in 2010 (Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution, 94 MARQ. L. REV. 917, 927 n.65 (2011)), and once for the affidavit he submitted on behalf of the plaintiff unions, stating that not a single other state had such an onerous recertification provision.

Cross posted at Workplace Prof Blog.

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4 Responses to “Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill”

  1. All this brouhaha over Wisconsin Act 10 is to me little more than rearranging deck chairs on the Titanic. Our state and country are still in an economic crises that promises collapse at any time. All of this hue and cry over public employee benefits will not stop the ship of state from sinking.

    In this case, both Scott Walker and the public employee unions are wrong. Neither has any real interest in the economic health of Wisconsin for all. It’s all about “me, me, me” what do I get out of it. In the meantime, the private sector continues to be hammered by out of control government. Walker’s budget, even with the trivial cuts at issue, is still the largest in Wisconsin history. Walker was wrong to exempt the majority of public employees; the unions are wrong in demanding things no one in the private sector has.

    I would like to see all public employees contracts put to a vote by the public. Our politicians have proved time and again that they cannot be trusted to look after the general welfare.

  2. Dennis Singstock Says:

    I do not see how someone can say that the unions are wrong in demanding things no one in the private sector has. As far as the unions in the schools–the teachers unions– school boards have refused to pay reasonable wages to teachers for years and therefore the teachers said that they would take other benefits in place of a reasonable wage. So agreements have been made for years between the school boards and the teachers with the teachers receiving part of their compensation in wages and part in other things called benefits. They are simply receiving smaller pay checks than they would if receiving a reasonable wage and getting these benefits as part of their compensation. They are not getting something extra.

  3. brenda seeley Says:

    The thing I fear most, after Act 10 went into effect, is the fact that employers can treat the employee in any manner they see fit with working conditions deteriorating. We fought against such tyranny in the fifties. Do I want big corporations running this country of ours? NO I do not, look around, open your eyes because that is what is happening, money buys votes, votes elect our leaders, this Act 10 will affect every working class American. If you enjoy working twelve hours a day for ten hours pay then you back this Act 10, don’t cry when it doesn’t meet your needs later in history.

  4. Brenda Seeley, you are absolutely right. If the worst happens, the citizens of WI & America will be angry at the ramifications & how it will affect them. At this point, I fear for our country….

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