Unions Heading to Court To Try To Overturn Wisconsin’s Ban on Collective Bargaining

Republicans say the case was brought by ‘liberal special interest groups’ seeking ‘“to please their donors.’”

AP pool/Michael P. King
Robert Jambois, counsel for Representative of Wisconsin, Peter Barca, speaks to reporters after a hearing April 1, 2011 in Dane County Circuit Court at Madison, Wis., on whether the state's collective bargaining law should be allowed to take effect. AP pool/Michael P. King

A Wisconsin court is set to hear arguments Tuesday over the state’s near total elimination of collective bargaining rights for public employees back in 2011, with unions and organized labor seeking to overturn the ban and state Republicans defending it.

Under the leadership of the then-recently elected governor of Wisconsin, Scott Walker, state Republicans pushed through legislation banning public employees from collectively bargaining over their hours and employment conditions.

Last year, a collection of labor organizations representing state and county employees, educators, and individuals filed a suit arguing that the collective bargaining ban in Wisconsin is unconstitutional.

Specifically, the group that brought the suit says that the law violates the state constitution’s equal protection clause because it makes it “prohibitively difficult” for “general” state employees to collectively bargain while allowing “public safety” employees “to proceed as though Act 10 were never passed.”

The public safety class, which is allowed to continue to collectively bargain, includes some firefighters, some police, and some motor vehicle inspectors, while excluding all other public employees.

Notably, it excludes many public employees whose duties concern public safety, like Wisconsin Capitol Police, University of Wisconsin Police, and conservation wardens, among others.

Furthermore, the unions bringing the case allege that the distinction between “general” employees and “public safety” employees “closely track the different political endorsements made by public-sector unions in the election immediately preceding Act 10’s Passage,” despite the bill ostensibly being passed to help balance the state’s budget.

“Indeed, during the 2010 campaign that led to the election of Scott Walker as Governor, only five public employee unions and associations publicly endorsed him, and each of those unions represented workers who are classified in Act 10 as favored ‘public safety’ employees — a classification never before known in Wisconsin law,” the lawsuit reads.

In addition to eliminating most fronts for collective bargaining, the law ushered in a “sea change,” according to the plaintiffs, subjecting public sector unions to annual recertification elections with an unusually high bar, where the union must win the support of 51 percent of all employees, not just those voting. The law also banned employers from deducting union dues from members’ paychecks. 

Republicans, like the state’s Speaker of the Assembly, Robin Vos, have moved to defend the law, alleging that the locals that brought the case are “liberal special interest groups” seeking “to undo the law to please their donors now that there’s been a shift in the court.”

“The repeal of Act 10 would bankrupt schools and local governments right after we gave them a historic funding increase,” Mr. Vos said in a statement on the lawsuit.

Other state Republicans, like Representative Barbara Dittrich, have claimed that Act 10 has resulted in $16.8 billion in savings for the state government since it was enacted.

“At the same time, Wisconsin can boast a fully funded public pension for our hardworking public sector employees,” Ms. Dittrich said in a statement.

An analysis from the nonpartisan Wisconsin Policy Forum found that the bulk of the savings state and local government employers received after Act 10 was passed came from shifting pension funding responsibilities to employees from employers.

Before Act 10 was passed, employers were responsible for 99 percent of contributions to the Wisconsin Retirement System, a fund created to act as a retirement plan for public employees. By 2017, that number had fallen to 52 percent.

The analysis of state and local governments, excluding Milwaukee County and the city itself, found that between 2011 and 2017 about $5.2 billion in pension contributions were shifted from employers to employees. 

While there has not been a followup analysis by the Wisconsin Policy Forum, it does appear that Ms. Dittrich’s $16.8 billion figure is likely a relatively accurate estimate. 

Though the law has survived legal challenges in the past, the case, initially being heard at Dane County court by Judge Jacob Frost, looks destined to be heard by the state Supreme Court and its relatively new liberal majority.

The lawsuit may also spark a fight at the state Supreme Court. The court’s newest liberal justice, Janet Protasiewicz, has previously said she believes that the law is unconstitutional and has, as a result, told the Milwaukee Journal Sentinel that she is considering recusing herself from the case.

On the conservative side of the court, Justice Brian Hagedorn had a role in drafting the law in question when he served as Mr. Walker’s chief legal counsel. He has, however, avoided committing to recusing himself from hearing a case on the law.

Neither Mr. Vos, Mr. Walker, nor Justice Hagedorn immediately replied to a request for comment.

The New York Sun

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