Wisconsin Supreme Court Limits Collective Bargaining Rights

Last week, a divided Wisconsin Supreme Court upheld Act 10, a law that sharply restricts collective bargaining rights of state employees. The law stops automatic collection of union dues from workers' salaries and puts in place several other restrictions to the functioning of workers' unions. Union activists challenged the law, but in a 5-2 decision the Wisconsin Supreme Court held the law was constitutional and did not violate the First Amendment rights of union members.

Act 10 was passed as a budget repair bill by Governor Scott Walker in March, 2011. The law prohibits general employees from collective bargaining other than for base wages. It imposes annual recertification requirements on workers' unions and prohibits fair share agreements that required non-represented general employees to make contributions to labor organizations. Act 10 also prohibits municipal employers from deducting labor organization dues from paychecks of general employees.


Madison Teachers, Inc. and Public Employees Local 61 filed a lawsuit in August 2011 challenging the prohibitions in Act 10 and claiming the prohibitions violate the constitutional associational and equal protection rights of the employees they represent.

In the beginning of the legal battle, Judge Juan B. Colas of the Dane County Circuit Court invalidated several provisions of Act 10 including the principal prohibitions relating to union re-certifications, fair share agreements and payroll deductions of labor organization dues. The matter came before the Wisconsin Supreme Court on appeal where the high court upheld Act 10 in its entirety.

In its decision, the court cited many precedents including the decision of the U.S. Supreme Court in Smith v. Ark. State Highway Empls., Local 1315 (1979) which says, "[While t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so … [,] the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it."

The court observed, "general employees are not being forced under Act 10 to choose between a tangible benefit and their constitutional right to associate. Instead, Act 10 provides a benefit to represented general employees by granting a statutory right to force their employer to negotiate over base wages, while non-represented general employees, who decline to collectively bargain, have no constitutional or statutory right whatsoever to force their employer to collectively bargain on any subject. For this reason, the plaintiff's argument must be rejected."