Wisconsin Supreme Court To Review Constitutionality Of Walker’s Union-Busting Law
Wisconsin’s Act 10, a piece of legislation that effectively nullifies collective bargaining rights for 200,000 municipal employees, could be facing its final challenge after the Wisconsin Supreme Court agreed to hear an appeal of the case last week.
Since it was passed in 2011, the hotly contested law has led to a failed recall election, mass demonstrations and, most recently, legal challenges by unions seeking to overturn it on constitutional grounds.
As the highest court in the state, the Supreme Court’s decision will likely be the final showdown in what has become a protracted battle between proponents of collective bargaining and defenders of Republican Gov. Scott Walker’s agenda.
Tumultuous history of Act 10
Wisconsin Public Radio reports that the lawsuit was brought by the Madison teachers union and a Milwaukee city employees union. In the case, Madison Teachers Inc. v. Scott Walker, the court will decide whether the law slashing collective bargaining rights for public workers violates the equal protection and association rights of municipal employees.
All of the major public employee unions in the state have already filed amicus briefs calling on the court to find portions of Act 10 unconstitutional, WPR reported. They also seek a judgment to determine whether the law applies equally to state and local government employees.
From the beginning, Act 10 has drawn condemnation from union members and supporters across the state. Protests sometimes 100,000 strong around the state capitol in Madison gave way to a recall election in an attempt to remove Walker from office.
That effort failed after most Wisconsin voters signaled their support for the Republican administration during June 2012 balloting. Walker received 53.1 percent of the vote, while Democratic challenger Tom Barrett pulled in 46.3 percent.
The fight continues
The push to roll back Act 10 didn’t end there, though. The Milwaukee Journal Sentinel reports that a September 2012 decision by Dane County Judge Juan Colas threw out the law’s restrictions on bargaining for city, county, and local workers.
Unions are now asking the state’s Supreme Court to declare it unconstitutional.
Prior to Act 10, labor laws required that employers bargain with employees and union leaders over all issues, including wages, hours and working conditions. If there was an impasse where the two sides could not agree, arbitration allowed both sides to make their best final offer. A neutral arbitrator would choose one offer over the other.
“That was the state of the law at the time that Scott Walker was elected. If the only issue in the law was to reduce the financial pressure on municipalities or to give municipalities over the ultimate contract, eliminating interest arbitration would have done that,” said Lester Pines, a lawyer representing unions in the case and a senior partner at Cullen, Weston, Pines and Bach.
The legislature went further, adopting what is known as “right-to-work legislation” that is supposed to curb collective bargaining rights in an effort to create a competitive, pro-business environment.
The law’s restrictions include barriers to negotiations on wages, a crucial component of any employee-employer negotiation. Now, Pines reports that union members can only negotiate potential cost-of-living increases.
Under Walker’s law, if an employer in the public sector wants to pay his employee a wage higher than standard cost-of-living increases, it would have to be put to a voter referendum.
“They said that hours and working conditions were prohibited areas of bargaining. They eliminated fair share, eliminated dues deduction and they required that any certified collective bargaining agent hold a re-certification election every year,” Pines said.
What does this all mean? For municipal employees, it means that Walker and the Wisconsin Legislature have created a law that technically doesn’t violate national labor laws, but still removes virtually all power from the unions, rendering them operational but wholly incapacitated entities. Pines, representing Madison teachers, will attempt to argue that by removing power from the unions, the legislature has violated union members’ constitutional rights to free association.
“The constitutional theory in this case is once people have an associational right, it cannot be burdened in a way that it has been burdened by the legislature,” Pines said. “On the one hand you have an associational right, you have the right to come together, to choose the representative of your choosing. But that right is burdened.”
Put another way, Pines explains that legislators can confidently say, “We didn’t eliminate the unions, they eliminated themselves.”
With oral arguments beginning as early as October, predicting an outcome is difficult in a such a highly politicized environment.
“I think it’s anybody’s guess as to what will happen. It’s asking the court to do a lot, it’s probably asking the court to step outside the comfort zone,” Pines said. “I recognize the ideological split and the interpersonal problems among the justices.”
Thus far, reducing the power of unions has failed to create the competitive, pro-business atmosphere that Walker sought to promote. Wisconsin has actually been mired in an economic slide since he took office with a promise to jump-start the economy and create 250,000 new jobs.
According to a recent economic report by Jack Norman, a consultant for the Institute for Wisconsin’s Future, the Badger State has trailed the national pace of private-sector job creation for 26 consecutive months — almost exactly the length of time Walker has been in office.
This follows a report earlier this month finding that private sector wages in Wisconsin had fallen 2 percent annually, roughly twice the national average. Additionally, overall average wages in Wisconsin had the 45th-worst ranking out of 50 states.
Earlier this month, the Federal Reserve Bank of Philadelphia’s economic outlook ranked Wisconsin 49th-worst among the 50 states. The only state with a worse score was Wyoming. The rankings are based on a comprehensive set of economic indicators, including unemployment, housing permits and interest rates on Treasury bonds.
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