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An Activist Decision Striking Down Wisconsin's Collective Bargaining Law


On Friday, a state court judge in Wisconsin struck down virtually all of Scott Walker's collective bargaining reform as a violation of both the US and Wisconsin constitutions.

The decision is a thinly veiled piece of judicial activism by Judge Juan Colas, who was appointed by the former Democratic Governor, Jim Doyle. How exactly does Governor Walker's reform infringe the "associational and speech rights" of municipal union members? Well, it prohibits municipal unions from collectively bargaining on non-wage benefits (they can still bargain on wages); it prohibits unions from forcing non-union members to pay part of the union's expenses (for the privilege of being represented by a union they want no part of), and it prohibits unions from automatically deducting union dues from payrolls. Got that? It's a violation of free speech to make the union ask its members for their dues.

I confess, I had to read Judge Colas' opinion several times to discover his rationale. The heart of the decision appears to be this single sentence on page 15: "Although the statutes do not prohibit speech or associational activities, the statutes do impose burdens on employees' exercise of those rights when they do so for the purpose of recognition of their association as an exclusive bargaining agent."

What a gloriously convoluted sentence! The reality is: the law dethrones municipal unions in Wisconsin from their former status as all-powerful closed shops, and finally gives employees the freedom to join, or not, municipal unions. Judge Colas casts this not as a burden on the unions, but on employees' right to associate for the purpose of forming an "exclusive bargaining agent." By this logic, every "right to work" law in the country violates the First Amendment. Judge Colas also held that the reform law violates the Equal Protection clause of the Fourteenth Amendment, but that holding was predicated on the asserted First Amendment violation.

This decision (and another recent one by an Obama-appointed federal court overturning parts of the Wisconsin law) are desperate rearguard actions by Democratic partisans. Under Walker's reforms, more than half of the Wisconsin members of the American Federation of State, County and Municipal Employees union have dropped out. So have a third of the American Federation of Teachers members in the state. This is terrible news for the Democratic Party. According to the National Right to Work Legal Defense Foundation, compulsory unionism allows unions to collect $4.5 billion annually in dues "and funnel much of it into unreported campaign operations." And now, those employees who have been forced to subsidize Democratic campaigns are heading for the exits.

The idea that Walker has violated workers' rights by giving them a real choice as to whether to join a union is preposterous. The Wisconsin Attorney General has vowed to appeal this decision -- let's hope reason prevails in the higher courts.

The case is Madison Teachers, Inc. v. Scott Walker: http://www.scribd.com/doc/105950737/Wisconsin-Collective-Bargaining-Ruling


Your summary fails to focus on the issue at the heart of the free association he put forth. A member of unions affected by Act 10 have their raises capped. Non union members do not. The only way a union member can receive that option is to quit the union. You may want that but why should one's membership in a union preclude an individual from the same raise a non union member can receive? Colas points out that collective bargaining is not a right, but if you are going to legislate its existence it must be evenhanded. You do understand that a teacher not in a union can theoretically walk into a superintendent's office and get a raise over the cost of living? Union members cannot. You consider this fair?

I appreciate the link to the decision under discussion. Too often, readers are left to ferret out the text on their own, an often difficult task when dealing with dictrict court opinions.

I find the commentary a bit limited, however, in that it ignores a number of other issues addressed by the court and which called for a similar result. Moreover, and more imporant, the commentary ignores a fundamental aspect of the court's decision on the issue of associational and speech rights, i.e, the fact that the law in question applied only to those government employees who are members of collective bargaining units. This defect, if appellate courts agree that it is such, is readily addressed by the Legislature. The other grounds for the district court's decision may not be so easily remedied, however.

As for the claim that the decision was that of an "activist", Mr. Freedman offers no logical argument in support of that conclusion. Appointment by a Democratic governor does not render the decision unsound, any more than a contrary ruling by a Walker appointee would have rendered that decision unsound.

We have appellate courts for a reason: to provide review of district court decisions in order to correct errors of law or in the application of law to facts. That process is underway here. Perhaps we should let the system play out before casting stones at those charged with deciding difficult issues.

Lee...the Wisconsin law only impacted collective bargaining on benefits, not pay. If you read anything at all about what was occurring in Wisconsin, you'd know that the source of much of its budget problems at the state and local level was some of the ridiculous benefit conditions, not just the benefits. For instance, not only were some school districts required to provide benefits far above those of the private sector, but they were required to use the union's insurance provider at double the cost that the district could find on the open market. In fact, some districts have been able to keep teachers that they were planning to fire just because they were lucky enough to have a collective bargaining agreement expire and save the exorbitant costs they had been paying. Public employee unions in Wisconsin still negotiate pay for their members.

I agree with Mr. Hamilton. Let's see what the appellate system thinks of Judge Colas's ruling unless someone can point to some glaring errors. In the meantime, though, I think that the ruling should be stayed until the appellate court renders its decision. Too many school districts could be unfairly affected during the period between this and the appellate ruling.

Jeff, I would like to respectfully point out that you are mistaken. Act 10 has definitive language related to salary for union members, in the schools limiting increases to cost of living percentage based on base pay for an entry level teacher.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.