Seventh Circuit Court of Appeals Upholds Act 10 (Again)

 In Act 10 Litigation, Case Updates, Laborers v. Walker

Today, the Seventh Circuit Court of Appeals for a second time upheld Act against constitutional challenges by public sector unions.  This case, brought by Laborers Local 236, AFL-CIO and another union, made similar, but slightly different, arguments to those brought by WEAC in the case decided by the Seventh Circuit in January, 2013.

Here, the unions argued that Act 10, in prohibiting government employers from negotiating with unions over anything but base wages, violated their First Amendment rights to free speech and free association.  The court rejected that argument, stating:

[Act 10] does not proscribe any conduct by the unions themselves. It does not prohibit the unions from forming. It does not forbid them from meeting. Nor does it prevent the unions from advocating on behalf of their members in any way they see fit.

Instead, the collective
‐bargaining restriction acts upon government employers. The statute tells these employers that they may not enter into binding agreements with their employees on a collective basis about anything other than base wages. Thus, as the district court recognized, ‘[u]nder Act 10, general employees remain free to associate and represented employees and their unions remain free to speak; municipal employers are simply not allowed to listen.’ We agree with the district court that under Supreme Court precedent, such a law is constitutional.

The unions also argued that Act 10 violated the equal protection clause because it treated union members differently than non-union members.  The court rejected that as well, stating:

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.

“This is yet another indication that the unions have no valid argument that Act 10 is unconstitutional,” said Tom Kamenick, Associate Counsel at WILL.  “Only one court – Dane County – has ever struck down Act 10.  Every other judge has either concluded Act 10 is constitutional or has been overturned on appeal.  We hope that the Wisconsin Supreme Court, which heard oral arguments in that case in November, will overturn the Dane County outlier and establish without a doubt that Act 10 is the law in Wisconsin.”

A copy of the opinion is available here.

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