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Seventh Circuit weighs challenge to Wisconsin’s Act 10

On Nov. 13, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit heard oral arguments in a challenge to Wisconsin’s Act 10, a 2011 bill that overhauled the state’s public-sector labor laws.

Who are the parties to the suit?  

Plaintiffs Karen Erickson and Heath Hanrahan are municipal employees of Marinette County, Wisconsin. Their union, International Union of Operating Engineers Local 139, represents approximately 9,500 workers in Wisconsin. The defendant is James Daley, chairman of the Wisconsin Employment Relations Commission.

What’s at issue?   

Act 10 prohibits municipal employers from negotiating with a union over “any factor or condition of employment except wages.” The law prohibits employers from deducting union dues from municipal employees’ paychecks. Act 10 also establishes annual recertification elections for municipal employee unions. In these elections, a union must receive at least 51 percent of the votes of all employees in the bargaining unit in order to be certified as the exclusive representative of those employees.

The plaintiffs allege these provisions of Act 10 violate their First and Fourteenth Amendment rights. The plaintiffs also argue that previous court decisions upholding these provisions of Act 10 should be reconsidered in light of the U.S. Supreme Court’s 2018 Janus v. AFSCME decision. This contrasts with the ways in which Janus has been invoked in other suits to challenge union-backed laws and practices (e.g., dues-deduction authorization windows, paid time off for union activities, etc.).

How did the lower court rule?

The plaintiffs filed suit in the U.S. District Court for the Eastern District of Wisconsin on Aug. 26, 2019. On March 3, Judge Joseph Stadtmueller dismissed two of the plaintiffs’ three claims, writing: 

As written, Act 10 does not violate Plaintiffs’ First Amendment rights because it does not prevent the union or its members from speaking. This is true even if municipal employers refuse to engage discussions with unions outside of the collective bargaining process. To the extent that Plaintiffs allege that Act 10, as applied, is unconstitutional because Defendant uses it to prohibit municipal employers from listening to what the unions have to say, then the injury would run to the municipal employers, not to the union.2 Accordingly, this claim will be dismissed without prejudice because the Plaintiffs lack standing to bring it. 

On April 7, Stadtmueller, a Ronald Reagan (R) appointee, dismissed the remaining claim, in which the plaintiffs argued that Act 10 unconstitutionally compels speech by counting non-votes in union certification elections as “no” votes. The plaintiffs appealed the decision to the Seventh Circuit. 

Case information   

The case name and number are International Union of Operating Engineers Local 139 v. Dale, 20-1672.

What we’re reading

• Westlaw Today, “7th Circuit will decide if Wisc. collective bargaining law is invalid after Janus,” Nov. 11, 2020
• The Hill, “Is Michigan’s collapse in union membership a sign of things to come?” Nov. 7, 2020
• Star Tribune, “Lawsuit alleges Anoka-Hennepin School District subsidizes union activities,” Nov. 5, 2020

THE BIG PICTURE

Number of relevant bill by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bill by current legislative status

Number of relevant bill by partisan status of sponsor(s) 

RECENT LEGISLATIVE ACTIONS

No legislative actions have been taken on relevant bills since our last issue.