Monday, November 18, 2013
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Wednesday, October 23, 2013
The Act 10 Saga Continues: Wiscosnin Judge Holds WERC Commissioners in Contempt for Enforcing Act's Recertification Provisions
The Wisconsin Act 10 story took another unexpected turn this past Monday. Those of you that have been following this saga know that Act 10 is the anti-public sector collective bargaining law enacted under the leadership of tea party Governor Scott Walker in 2011. There have been all sorts of bizarre twists and turns in now almost three years of political and judicial fighting among the Walker administration and impacted unions.
Although the Wisconsin Supreme Court is due to hear oral arguments on November 11th on a trial judge's ruling from September 2012 that Act 10 violates free speech, association, and equal protection rights of public sector union members under the federal and Wisconsin state constitution, there has been quite a side-show in the meantime.
The Wisconsin Employment Relations Commission (WERC) is tasked with applying Act 10's onerous recertification provisions, which require public sector unions to annually certify through vote than 51% or more of all members (not just voting members) still wish to be represented by the union. In its previous incarnation, WERC did meaningful public sector employment work in the areas of fact-finding, mediation and arbitration. That function is mostly gone under the Act 10 regime.
In any event, the dispute here is whether Judge Colas's decision striking down Act 10 only applied to the unions represented in that case or to all public sector unions in Wisconsin. The initial ruling was less than clear in this regard. Because of the ambiguity, WERC has continued to apply the recertification provisions by decertifying the Kensoha teachers union for not seeking recertification and by planning to hold recertification elections in November for other public sector unions.
Judge Colas ruled on Monday that the two WERC Commissioners were in contempt of court for seeking to still apply Act 10 because his ruling applied to all public state and local employees in Wisconsin. WERC has responded by completely ceasing its efforts to apply these provisions of Act 10 in order to purge their contempt.
It is unclear what happens next. On the one hand, I, and most others, suspect that the 4 to 3 conservative-dominated Wisconsin Supreme Court will strike down Judge Colas's decision invalidating Act 10, which makes all this contempt hoopla eventually moot. But when that decision comes down is anyone's guess, although likely before next summer. On the other hand, the government has indicated that it will seek immediate relief from Judge Colas's conempt order by asking the Wisconsin Court of Appeals to stay or vacate Judge Colas's order.
I am somewhat bummed by all this on a personal level. I published what I thought was a comprehensive law review article detailing the entire Act 10 story in the summer of 2012 (shortly before the unsuccessful recall election of Governor Walker), but now I see I might have to write a second part to this saga. Sigh.
Tuesday, October 15, 2013
The Supreme Court today dismissed Madigan v. Levin, the first case to be argued this year, a case about whether the ADEA supplanted a remedy for unconstitutional age discrimination under 42 U.S.C. § 1983, as improvidently granted. Most people could see this coming from the oral argument, where the Justices focused on the procedural posture of the case and whether the Seventh Circuit had jurisdiction to answer the question accepted for certiorari--and if so, whether that jurisdiction should have been exercised. A group of federal courts professors had filed a brief amici curiae, arguing that the court had jurisdiction, but should not have exercised it for prudential reasons, and as the oral argument transcript shows, the Justices focused on that question and additional issues related to the fact that this was an interlocutory appeal from denial of summary judgment on qualified immunity grounds.
The case will go back to the district court for further procedings on the merits. Because the defendants were found not qualifiedly immune, this may be ripe to settle.
The Supreme Court did not vacate the Seventh Circuit's decision, so, as we noted before, the split seems to remain: the 1st, 4th, 9th, and 10th, have held that the ADEA implicitly forecloses bringing an age discrimination claim directly under the equal protection clause using § 1983 as a vehicle; the 7th has held that it has not.
Wednesday, September 25, 2013
Fordham Urban Law Journal Cooper-Walsh Symposium on Legacy Liabilities and Municipal Financial Distress
The Fordham Urban Law Journal's Cooper-Walsh Symposium this year is entitled: Legacy Liabilities and Municipal Financial Distress. It will be held on Friday, October 11th from 10:00 am to 4:30 pm at the Fordham Law School, 140 West 62nd Street, Room 430 B/C.
I have the good fortune of being part of this Symposium and will present a paper based on my recent research on how employment claims are treated in insolvency proceedings and guarantee schemes around the world. The hope is the provide U.S. policymakers some international benchmarks for the treatment of pension and wage claims in both corporate and municipal bankruptcy situations.
I will provide more information on my paper in coming weeks once I have posted a draft of the article, but for now here are the particulars for the Cooper-Walsh Symposium from the Journal website (including the program line up):
The sixth annual Cooper-Walsh Colloquium will address the effects of the rising costs of healthcare and pension plans on municipalities and their residents. Every year, the Colloquium is dedicated to bringing attention to the policies and legal frameworks that will shape the future of American cities. The Colloquium is organized in conjunction with Professor Susan Block-Lieb, the Cooper Family Chair in Urban Legal Issues, and Vice Dean Sheila Foster, the Albert A. Walsh Chair of Real Estate, Land Use, and Property Law.
The presenters will introduce their papers, followed by responses from commentators and round table discussions. The Fordham Urban Law Journal will publish the articles and responses in its Spring 2014 Cooper-Walsh Book.
To register, please contact Kristy Eagan, Cooper-Walsh Editor, at firstname.lastname@example.org.
In addition to myself, other presenters include Jack Beerman (BU), Melissa Jacoby (UNC), and Christine Chung (Albany). Opening remarks will be delivered by Richard Ravitch (former Lieutenant Governor of New York).
Thursday, September 19, 2013
Some of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech. I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.
Yesterday, the Fourth Circuti made the world right again by finding that liking a candidate's campaign page on Facebook was in fact protected First Amendment speech.
On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory: Social Media and Public Sector Labor Law. The article has now been published in North Kentucky Law Review as part of the Law + Informatics Symposium on Labor and Employment Issues. A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.
Monday, September 9, 2013
For those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.
Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor's teaching and writing at school. Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard - no First Amendment speech protection for public employees speaking pursuant to their official duties - also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).
In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which "a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled 'The Ivory Tower of Babel.'” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.
Judge Fletcher, writing for the unanimous panel, came to four important conclusions:
1. Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. ("We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].
2. Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer's right to run an efficient government service. ("We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.").
3. So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee. The court therefore remands on this and a few other related issues.
4. In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law. In short, they enjoy qualified immunity.
This is not the first case finding that there is an exception to Garcetti for teaching and academic writing. The Fourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court. My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.
Monday, September 2, 2013
Slater and Welenc: Are Public-Sector Employees 'Overpaid' Relative to Private Sector Employees? An Overview of the Studies
Joe Slater (Toledo College of Law) and Elijah A. Welenc (Student - Toledo College of Law) have posted on SSRN their new piece entitled: Are Public-Sector Employees 'Overpaid' Relative to Private Sector Employees? An Overview of the Studies.
Here is the abstract:
The laws eliminating or severely restricting the collective bargaining rights of public-sector unions passed since 2011 are one of the most important developments in both workplace law and politics in recent memory. Among other things, public-sector workers now comprise more than half of all union members in the U.S., and such unions are a major constituency of the Democractic Party. Proponents of these new laws often justify them at least in part by claiming that public employees are overpaid relative to private sector employees. This paper focuses on a large and representative selection of studies comparing the compensation of public- and private-sector employees. It reviews their findings and methodology, noting the assumptions and data-sets used. It also draws some conclusions as to the policy implications of the works discussed herein.
In sum, a majority of studies have found that public workers on the whole are paid somewhat less than comparable private sector employees, but there are significant dissenting voices. A consensus has formed around a few findings. Studies almost all find that at the very bottom of the pay scale, public workers enjoy slightly higher compensation than their private-sector analogs, while at the upper end of the scales (lawyers and other professionals, e.g.), public workers are paid less than comparable private-sector employees. Most of the disagreements, therefore, are about employees in the middle of the pay scale. Second, almost all studies agree public workers receive less “take home” pay than private-sector workers, but they generally receive more generous health and pension benefits. When combining pay and benefits, a majority of studies still find a “public-sector penalty,” but others do not.
Important methodological differences include how to calculate the value (and current cost) of future benefits, how to compare certain types or ranges of jobs across sectors, and whether to assign value to “job security” for government employees. For example, some public-sector jobs have direct private-sector analogs (janitors and lawyers), and some do not (police and firefighters). Furthermore, even jobs with the same title may not involve the same work. Also, controlling for employer size seems to matter: Studies that do not use such controls are more likely to find a public-sector premium than studies that do.
All very interesting and important to studies on the costs and benefits of public sector unionism. While it is unlikely that partisans on either side of the issue are ever going to agree completely, it is great to see a paper which tries to find common ground where it can, while pointing out why substantial disagreement over some issues persist.
Friday, June 28, 2013
This was fast. Windsor is only a few days old, and OPM has already come out with this memo for federal executives: "Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families." The introduction:
As you already know, on June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. As a result of this decision, the United States Office of Personnel Management (OPM) will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex.
There are numerous benefits that are affected by the Supreme Court’s decision, and it is impossible to answer today every question that you may have. Nevertheless, I want to assure you that the U.S. Office of Personnel Management is committed to working with the Department of Justice to ensure swift and seamless implementation of the Court’s ruling.
A big deal for same-sex couples that include a federal employee.
Hat Tip: Patrick Kavanagh
Tuesday, May 7, 2013
Thanks to Charlotte Garden (Seattle) for passing on this interesting and under-reported story about a new case just filed in California which has the potential to drastically change the way public unions operate in that state. The case is Friedrichs v. California Teacher Association and the complaint can be found here.
Peter Scheer on the 1st Amendment News website writes in his post, New 1st Amendment Case Poses Existential Threat to Public Employees Unions:
In a scarcely-noticed lawsuit filed [April 29th] in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.
And in case you think this case is a non-starter in light of the U.S. Supreme Court's Abood decision, think again:
On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.
In other words, another attack on the very existence of public unions, like we have already seen in Wisconsin, Ohio, and Michigan. The California public employee unions are extremely strong and willing to put the necessary money into this litigation to win, so it is anyone's guess what might happen. It might come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there (as it did with Act 10 and the conservative-leaning Wisconsin Supreme Court).
Here is the summary from Justia.com (opinion also included at this link):
Plaintiff Bruce Whitman had been employed by defendant City of Burton as the police chief from 2002 until 2007. Codefendant Charles Smiley, the Mayor, declined to reappoint plaintiff. Plaintiff then filed suit under the [Michigan] Whistleblowers' Protection Act (WPA), alleging that he was not reappointed because he had threatened to pursue criminal charges against the mayor if the city did not comply with a city ordinance and pay him for unused sick, personal and vacation time he accumulated in 2003. Defendants contended that plaintiff had agreed to forgo any payout for accumulated leave in order to avoid a severe budgetary shortfall and that plaintiff was not reappointed because the mayor was dissatisfied with plaintiff's performance as police chief. A jury returned a verdict in favor of plaintiff; the trial court denied defendants' motion for judgment notwithstanding the verdict or a new trial. Defendants then appealed. The Court of Appeals reversed, concluding that plaintiff's claim was not actionable under the WPA because he had acted to advance his own financial interests and not out of an altruistic motive of protecting the public. Upon review, the Supreme Court concluded that nothing in the WPA's language addressed an employee's motivation for engaging in protected conduct, nor did any language mandate that the employee's primary motivation for pursuing a claim under the Act be a desire to inform the public of matters of public concern. Accordingly, the Court reversed the appellate court and remanded the case for consideration of remaining issues on which that court did not formally rule, including whether the causation element of the WPA had been met.
This is an interesting ruling, especially since the Michigan WPA seems to diverge from the federal WPA as far as what is considered protected activity. I may be wrong on this point and I'll let other experts, like Richard Moberly, weigh in.
Also, I do not know enough about the Michigan WPA to know whether this interpretation jibes with something peculiar in the way this state law is written, or whether this provision exists in many states and is similar to the federal law. If the latter, this decision could be persuasive authority for other states and as far as the federal law.
One additional thought. Interesting that the plaintiff decided not to file a First Amendment claim. Just speculation, but perhaps the attorney thought this would be considered official capacity conduct under Garcetti or not a matter of public concern under Connick. Regardless, given all the hurdles a plaintiff must negotiate to win a public employee First Amendment claim, clearly his counsel made the right call in focusing on the state WPA law.
Monday, April 22, 2013
Congratulations to Amy Monahan (Minnesota), who is one of two law professors receiving American Law Institute's Young Scholar's Medal. Here are some excerpts from ALI's press release:
Justice Goodwin Liu of the California Supreme Court who chaired the Young Scholars Medal Selection Committee, said "Professor Monahan's work on public pension reform and employee benefits has contributed significantly to some of the most important debates now playing out at the local, state, and federal levels."
Professor Monahan's scholarship centers on the intersection of health care reform and public sector pensions. Her teaching and research focuses primarily on the topics of taxation and employee benefits. She has written 17 articles or book chapters since the beginning of her law teaching career. Professor Monahan holds a J.D. from Duke University School of Law and a B.A. in international studies from Johns Hopkins University.
"Amy has rapidly established herself as one of the country's top scholars in health policy and employee benefits law," said David Wippman, the dean of the University of Minnesota Law School. "She's also a terrific teacher and colleague and richly deserves the Young Scholars Medal."
Each year a lot of us worklaw people write about constitutional issues and a number of regulars at the Labor & Employment Law Colloquium have also presented at the Con Law one.
Complete details after the break.
Tuesday, March 19, 2013
Adam Shinar (S.J.D. Candidate, Harvard Law School) has just posted on SSRN his forthcoming piece in the Connecticut Law Review entitled: Public Employee Speech and the Privatization of the First Amendment.
Here is the abstract:
Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored.
Against this background, the article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice.
I have had the privilege of commenting on earlier drafts of this paper and it is one of the finest papers on public employment free speech law that I have read in quite a while. It is comprehensive, insightful, and seeks to answer a question concerning why public employee speech is being treated more like (less legally protected) private employee speech in the United States. Adam draws on a wide range of interdiscplinary scholarship for his findings and he concludes by seeking to establish broader First Amendment free speech protections for public employees so that they can speak out freely in the public interest.
Check it out!
Monday, March 18, 2013
The Supreme Court today granted cert in Madigan v. Levin, an ADEA case from the 7th Circuit. Here is the issue:
Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.
Friday, March 1, 2013
Ciara Torres-Spelliscy (Stetson) has just posted on SSRN her article Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights (72 Montana Law Review 101 (2013)). Below is an excerpt from her abstract. Readers interested in this topic should also see Fisk & Chemerinsky's article described here.
This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.
* * *
Monday, February 18, 2013
William A. Herbert just posted on SSRN his article (presented at the NKU Chase Law & Informatics Symposium last week) Can't Escape from the Memory: Social Media and Public Sector Labor Law. Here's the abstract:
The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.
Tuesday, February 5, 2013
Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.
February 5, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 23, 2013
Outgoing Secretary of Defense Leon Panetta and Army General Martin Dempsey, Chairman of the Joint Chiefs of Staff are apparently going to announce tomorrow that they are lifting the ban on women serving in combat positions with a goal towards integration by 2016. In November, four servicemembers represented by the ACLU sued to lift the ban, arguing that women were already serving in most combat roles but just weren't getting recognized for it. Advancement to the highest levels of military service depends on service in combat.
This move comes via a recommendation from the Joint Chiefs of Staff, which earlier this month issued a "Women in Service Implementation Plan" calling for this change; that memo stated in part, "[t]he time has come to rescind the direct combat exclusion rule for women and to eliminate all unnecessary gender-based barriers to service."
For more information see the news stories here, here, here, and here. Mandatory regisration with the Selective Service Administration does not appear to be addressed by the recommendation; perhaps that is not widely enough seen to be a gender-based barrier to service.
This is a big step forward potentially for sex equality in the military, although full implementation will take some time. I hope that part of that implementation involves addressing the serious problem of sexual violence in the military as part of a comprehensive plan. I also think that the effect of this change in policy does a lot to expand women's rights more broadly in this country. To the extent that military service is one of the responsibilities of full citizenship, and I think most people agree that it is in at least some cirumstances, allowing women to serve the same way men do solidifies our claim to citizenship and authority to set national policy.
Tuesday, January 22, 2013
An Analysis of the 7th Circuit's Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision
On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin's decision in the same case.
The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.
That only "most" public sector workers in Wisconsin were covered by Act 10 - most general public sector employees were, but most public safety workers were not - became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.
The Western District of Wisconsin held that Act 10's distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis.
The 7th Circuit in a 2-1 decision Friday upheld the law in its entirety. As an initial matter, the state was found to have a legitmate basis for denying some public employees collective bargaining rights but not public safety officers because of concerns about the public peace and order after the law passed. More interestingly, the Court said the First Amendment was not violated with regard to the anti-dues checkoff provisions because the state was seeking to subsidize some union speech, but not others. In such subsidy cases, the distinctions have to be reasonable and viewpoint neutral. The majority of the 7th Circuit held that it was reasonable because of concerns relating to labor piece and not viewpoint discriminatory because elections have consequences and politicians are permitted to favor one group of employees over another. The 7th Circuti also held that the anti-dues checkoff provisions and recertification provisions were not a pretext for viewpoint discrimination (this is where dissenting Judge Hamilton disagreed and would have found that the dues checkoff provision of Act 10 violated the First Amendment as a pretext for viewpoint discrimintation).
With regard to the equal protection claims, the union dues and recertification provisions were found to meet the low standard of rational basis review because of the labor peace concerns the majority mentioned throughout the opinion.
Couple of thoughts on this long 74-page opinion:
1. It does not in any way put the Act 10 litigation to rest. This case merely decided one set of federal constitutional issues revolving around distinctions made between public safety officials and other public employees in Act 10. It does not have anything to do with Judge Colas decision made in Dane County Circuit Court in September, which is based on different reasoning all together and still at this point finds the law invalid (at least for municipal employees). Additionally, there is other Act 10 litigation pending, including public pension litigation involving constitutional impairment of contract claims and state constitutional home rule charter claims.
2. Given that the whole raison d'etre behind Act 10 when announced was to help trim the budget deficit, it is remarkable that the 7th Circuit barely discusses the State's assertion in this regard and relies primarily for the distinctions in the law based over concerns for labor peace. This may be in fact one of the concerns for collecitve bargaining distinctions, but to completely ignore the asserted budgetary reasoning , which had nothing to do with the dues checkout and recertification provisions, is outlandish.
3. It is also remarkable that two 7th Judges could say with a straight face that the law was not viewpoint discriminatory given that the union dues and recertification provisions were clearly a thinly veiled attempt to punish public unions that did not support Walker's 2010 election. I think the dissenting judge was right when he said this was really a limited public forum case (not just a subsidy case) and that al least the union dues provisions was clearly viewpoint discriminatory under the appropriate First Amendment analysis.
4. There could potentionally be a en banc review or even a petition for cert to the Supreme Court, but I think this decision is largely the last word on these Act 10 issues.
5. I think it is also remarkable that the 7th Circuit ended up basing its decision largely on arguments that were not made before the district court and should have been considered waived on appeal under basic fundamentals of appellate review.
In all, not a very convincing decision from my standpoint and another blow for public unions in Wisconsin. In the end, litigation may lead to some changes in the law, but there really is no substitute for either seeking to amend the Wisconsin constitution to provide for public employee bargaining rights or getting the necessary Democratic majorities in the legislative chamber and a Democratic governor in Madison. Unfortunately, the confluence of those events may be a long way off and public unions are likely to suffer in the meantime.
Thursday, December 6, 2012
It is hard to believe that one of the homes of the labor movement, Michigan, is about to enact "right-to-work" (or right-to-free-ride) legislation. Such legislation will permit workers in both the public and private sectors in Michigan to receive the services of unions (collective bargaining and grievance handling) without paying for any of the expense of such services through agency fees (membership dues).
Needless to say, such laws make it hard for unions financially to maintian their operations and make it also difficult for unions to organize workers in the first place.
Here are the latest details from the Detroit Free Press on the Michigan situation:
There was chaos and high emotion at the Capitol today after Gov. Rick Snyder and GOP legislative leaders announced fast-track plans to make Michigan the nation’s 24th right-to-work state.
At a news conference, Snyder said the Legislature will proceed with right-to-work legislation for public and private employees — which would exclude police and firefighters — and that the bills will be introduced today during the lame-duck session. He said he plans to sign them when they reach his desk.
“The goal isn’t to divide Michigan. It is to bring Michigan together,” the governor said, as hundreds of union protesters stormed the Capitol and the governor’s office, vociferously voicing their opposition to the plan.
Union activists demonstrated outside and inside the Romney Building, which houses Snyder’s offices, and poured into the Capitol across the street. At about 12:30 p.m., State Police said no one was being allowed into the Capitol -- including employees -- because it was at capacity. Even UAW President Bob King and Michigan AFL-CIO head Karla Swift were having trouble attempting to get inside.
If Michigan does enact this legislation, which appears very likely at this point, it will be the 24th state to do so.