Author

Janie Valentine

Janie Valentine is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Four candidates running for Wisconsin secretary of state

Incumbent Doug La Follette (D), Amy Loudenbeck (R), Sharyl McFarland (G), and Neil Harmon (L) are running for Wisconsin secretary of state on Nov. 8, 2022.

Duties of the Wisconsin secretary of state include recording the official acts of the governor and the executive department, compiling and keeping laws and resolutions adopted by the legislature, having custody of the state’s records, and authenticating certain documents. According to Wisconsin Public Radio‘s Shawn Johnson, “[M]ost of the office’s responsibilities have been outsourced to other state agencies that answer to the governor.”

The responsibilities of the office have been a central issue in this race, particularly concerning election administration. Wisconsin is one of five states where the secretary of state has no election-related duties. The legislature transferred election administration responsibilities from the secretary of state to a nonpartisan elections board in 1974. Since 2016, the bipartisan Wisconsin Elections Commission has overseen the state’s election administration. La Follette and Loudenbeck disagree about whether the secretary of state should have a role in the state’s election system.

La Follette was first elected secretary of state in 1974 and served one term before an unsuccessful run for lieutenant governor in 1978. He was elected secretary of state a second time in 1982 and has since served 10 consecutive terms. La Follette says that maintaining the state’s independent election system is “[t]he critical issue in this campaign for Secretary of State.” He said, “The state of Wisconsin has been a pivotal battleground in several of the past presidential elections. … For this reason, it’s more important than ever that we elect a Secretary of State that will defend our democracy over party. As America’s longest-serving incumbent Secretary of State, I have the track record and deep well of experience to do it.”

La Follette also says he wants the secretary of state’s office to again have responsibility for business-related functions. He said, “I have long maintained that we need to make Wisconsin more business friendly. An important step in that direction is to have Wisconsin’s business functions handled as they are in other states. To do this, we should consolidate all such ‘business functions’ in the Office of the Secretary of State.”

Loudenbeck was first elected to represent District 31 in the Wisconsin State Assembly in 2010. Her campaign website states, “The Secretary of State’s office has fallen into disrepair and disfavor thanks to the neglect of Democrat Doug La Follette who has been in that office for forty-four years.” Loudenbeck says, “[M]y goal would be to modernize the office, to be responsive to requests for authentication of documents, to be a billion dollar board member for the Board of Commissioners of Public Lands and actively engage in the role that currently exists for the secretary of state that I see as being neglected right now.”

Loudenbeck has said she would advocate for abolishing the Wisconsin Elections Commission and moving ministerial election duties such as training, guidance, voter roll maintenance, and voter outreach to the secretary of state’s office.

To change the duties of the secretary of state, the legislature would have to pass a bill and the governor would have to sign it into law. Wisconsin currently has a divided government, with Republican majorities in the Senate and Assembly, and Democrat Tony Evers holding the governorship. According to the Associated Press‘ Todd Richmond, “Republican Assembly Speaker Robin Vos … has said he supports the [Wisconsin Elections Commission] and opposes giving the secretary of state election powers.”

In 2018, Democrats gained a state government triplex in Wisconsin when Democratic candidates defeated Republican incumbents in the elections for governor and attorney general, and La Follette was re-elected. All three offices are up for election again in 2022.

There are currently 23 Republican triplexes, 18 Democratic triplexes, and 9 divided governments where neither party holds triplex control.

This is one of 27 elections for secretary of state taking place in 2022. All but three states have a secretary of state.



Union Station: Supreme Court agrees to hear case challenging FLRA jurisdiction over Ohio National Guard collective bargaining dispute

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Supreme Court agrees to hear case challenging FLRA jurisdiction over Ohio National Guard collective bargaining dispute

The U.S. Supreme Court has agreed to hear an appeal of a Sixth Circuit ruling that the Federal Labor Relations Authority (FLRA) has jurisdiction to regulate a collective bargaining dispute between the Ohio National Guard and the American Federation of Government Employees (AFGE). AFGE is the federal employee union representing Ohio National Guard technicians, who are civilian federal employees. 

Background

According to Government Executive’s Erich Wagner:

“[Ohio]’s union contract with the American Federation of Government Employees expired in 2014, and although the state committed to continue to bargain in good faith with the union on a successor agreement, in 2016 it distributed a memo saying that the state is neither bound by the expired contract nor the Civil Service Reform Act. The state then proceeded to cancel union dues payroll deductions from ‘most’ dues-paying members, prompting a series of unfair labor practice complaints that were upheld by the FLRA in 2020.” 

The Ohio Adjutant General’s Department, the Ohio Adjutant General, and the Ohio National Guard appealed the FLRA’s 2020 ruling to the U.S. Court of Appeals for the Sixth Circuit. Senior U.S. Circuit Judge Martha Daughtrey and U.S. Circuit Judges R. Guy Cole Jr. and Eric Clay denied the petition on Dec. 21, 2021. Cole wrote, “The FLRA has jurisdiction to adjudicate the collective-bargaining dispute between the Guard and the Union and to issue an order requiring the Guard to comply. Further, the Guard can lawfully comply with the FLRA’s order.” 

At the Supreme Court

The Ohio petitioners appealed to the Supreme Court on May 13, 2022. The petitioners presented the following questions: 

1. “Does the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only … empower it to regulate the labor practices of state militias?”

2. “The second Militia Clause empowers Congress to ‘provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.’ … Assuming the Civil Service Reform Act of 1978 permits the Federal Labor Relations Authority to regulate the labor practices of state militias, is the Act unconstitutional in its application to labor practices pertaining to militia members who are not employed in the service of the United States?” 

On July 18, 2022, attorneys for the FLRA filed a brief opposing the petition, rephrasing the questions as follows: 

1. “Whether the adjutant general of a state National Guard unit, and the unit itself, are subject to the requirements of the Federal Service Labor-Management Relations Act … when they act in their capacities as supervisors of dual status technicians, who are ‘[f]ederal civilian employe[es],’ …

2. “Whether the Act violates the Militia Clauses, U.S. Const. Art. I, § 8, Cl. 15, 16, by providing dual status technicians the right to collectively bargain over certain conditions of their federal civilian employment.” 

To view additional briefs submitted to the court in this case, click here

The justices reviewed the case during their first conference of the 2022-2023 term on Sept. 28. On Oct. 3, the court granted the petition to hear the case, limited to the petitioners’ first question, whether the Civil Service Reform Act of 1978 gives the FLRA authority to regulate state militia labor practices. The case has not yet been set for argument. 

The case name and number are The Ohio Adjutant General’s Department, et al., v. Federal Labor Relations Authority, et al. (No. 21-1454).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 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 bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.


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Adrian Fontes (D) and Mark Finchem (R) running for Arizona secretary of state

Adrian Fontes (D) and Mark Finchem (R) are running for Arizona secretary of state on Nov. 8, 2022. Incumbent Katie Hobbs (D) is running for governor of Arizona.

Duties of the Arizona secretary of state include serving as the state’s chief election officer and keeping the state’s official records. As Arizona is one of five states that does not have a lieutenant governor position, the secretary of state also serves as acting governor when the governor is out of state and is first in the gubernatorial line of succession.

Fontes served as Maricopa County Recorder from 2017 to 2021. In his response to Ballotpedia’s Candidate Connection survey, Fontes highlighted his experience as county recorder, saying that he had “revolutionized Arizona’s elections by registering half a million new voters, providing direct outreach to traditionally underserved communities, and making voting free, fair, and accessible to all.” Fontes’ campaign website also says he “enhanced ballot tracking technology and increased process transparency[.]” The website says Fontes is “committed to preserving integrity in our elections, increasing transparency in the Secretary of State’s office, making voting easier for registered voters, and ensuring that Arizona’s business community has a partner in the Secretary’s office.”

Finchem was first elected to represent Arizona House of Representatives District 11 in 2014 and was re-elected three times. Finchem’s campaign ads highlight former President Donald Trump’s (R) endorsement, as well as Finchem’s response to the 2020 presidential election in Arizona. One ad says that “[w]hen Arizonans had concerns about their election, Mark Finchem had the courage to hold the Maricopa hearing that led to the Arizona audit” and says that Finchem “filed legislation to set aside the irredeemably compromised elections in three counties with large margins of error.” Finchem says he will “support law enforcement, clean the voter rolls for accuracy, prosecute fraud, secure [Arizona] elections, increase transparency, communicate with voters, and count all legal votes.”

Fontes’ campaign website says, “… Finchem will take away our right to vote, he will end vote by mail, he will overturn election results if he sees fit, and his radical agenda will threaten our economy. Mark Finchem is a member of the Oath Keepers, an extremist hate group who wants to overthrow the government. … If elected, Finchem would, as the official who oversees the state office administering the 2024 presidential election, have the power to possibly affect the outcome of the race.”

Finchem called Fontes “a lawless bad actor who has a history of criminal behavior who recklessly bungled both the 2018 and 2020 elections as the Maricopa County Recorder” and said he was “[George] Soros’ handpicked Marxist who will turn Arizona into California with open borders & rigged elections.” Finchem said, “Fontes does not respect the law, is a criminal who has served time in jail and rewrote law illegally and was rebuked by many on all sides for it.”

Hobbs was elected in 2018 with 50.4% of the vote to Steve Gaynor’s (R) 49.6%. Republicans hold the two other top executive positions in Arizona—governor and attorney general—meaning that neither major party has a triplex in the state. There are currently 23 Republican triplexes, 18 Democratic triplexes, and 9 divided governments where neither party holds triplex control.

This is one of 27 elections for secretary of state taking place in 2022.



Union Station: End-of-session roundup of California public-sector union legislation

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End-of-session roundup of California public-sector union legislation

California Gov. Gavin Newsom (D) recently signed three bills related to public-sector union policy and vetoed another three. 

About the bills   

Newsom had until Sept. 30 to sign or veto bills the legislature passed before the end of its session on Aug. 31, with any unreturned bills becoming law without his signature. According to his office, Newsom signed 997 bills into law in the 2022 legislative session and vetoed 169 bills.

California requires a two-thirds vote from both chambers of the legislature to override a gubernatorial veto. Democrats currently have veto-proof majorities in both chambers. The legislature has 60 days to consider a veto.  

Here’s a roundup of bills related to public-sector union policy that Newsom signed or vetoed in September. Democrats introduced all six bills. To view a spreadsheet with all the public-sector union bills we’re tracking across the country, click here

Signed bills: 

  • AB 158: This budget-related bill includes a proposed tax credit for union dues. (To read more about the proposed tax credit, see the July 8 edition of Union Station.) According to The Sacramento Bee’s Wes Venteicher, AB 158 “doesn’t specify the size of the credits for most dues-payers” but “sets out lawmakers’ intent to provide $400 million worth of the credits starting in 2024.” Venteicher writes, “While not included in the language of the bill, backers have talked about capping credits at about a third of dues. The Legislature would still have to appropriate the $400 million — and could reduce or increase the amount — in future budgets.” Newsom signed AB 158 on Sept. 29.
  • AB 2556: This bill changes the time for a public agency to implement its final offer after mediation from 10 to 15 days after the factfinding panel has submitted its recommendation. It also authorizes a union to charge certain employees under the Firefighters Procedural Bill of Rights Act for the cost of requested representation if they have declined union membership. Newsom signed the bill on Sept. 18.
  • SB 931: This bill allows a union to bring a claim before the Public Employment Relations Board against a public employer that the union alleges to be in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. Newsom signed the bill on Sept. 29. The bill’s sponsor, Sen. Connie Leyva (D), said, “Though it is wrong—and even already illegal—for public sector employers to purposely discourage union activity, these tactics still continue as employers try to prevent their workers from unionizing and asserting their rights. SB 931 will create a financial penalty and disincentive that will hopefully finally deter public sector employers from breaking the law by deliberately discouraging union activity among their workers.”

Vetoed bills

  • AB 1714 and SB 1406: These bills would have allowed unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances. Newsom vetoed both bills on Sept. 18, writing, “Current law allows managers and supervisors to pursue resolution of disagreements through a four-step grievance process and pursue a claim with the State Personnel Board. AB 1714 would add a costly step to this process. Additionally, AB 1714 would permit excluded employees to arbitrate the Department of Human Resources’ (CalHR) authorizing statutes, regulations, policies, and/or practices before non-governmental entities. This could lead to conflicts with the statutory authority delegated to CalHR and the Legislature ‘s authority. These are the same concerns I had with previous, nearly-identical bills, SB 179 (2019), and SB 76 (2021) which I also vetoed.” SB 1406 went back to the Senate for consideration of the governor’s veto.
  • SB 1313: This bill would have prohibited Los Angeles County from discriminating against union members by limiting employee health benefits. Newsom vetoed this bill on Sept. 28, writing, “The State of California stands firmly against employee discrimination in all forms. This bill, however, suggests the final outcome of good faith bargaining between parties is inherently unfair because unrepresented workers may have access to better benefits. If enacted, it would upend existing collectively bargained contracts by effectively codifying the setting of local employee benefits which is best addressed through the collective bargaining process. Additionally, if determined to be a state mandate, this bill would result in additional costs to the state in the hundreds of millions of dollars not accounted for in the budget. … Bills with significant fiscal impact, such as this measure, should be considered and accounted for as part of the annual budget process.” SB 1313 went back to the Senate for consideration of the governor’s veto.

Another bill we tracked this year passed the Assembly and Senate but didn’t make it to Newsom’s desk. AB 1577 would have allowed state legislative employees to organize and bargain collectively. Both chambers passed versions of the bill, but failed to agree on Senate amendments. The bill died in the Assembly Public Employment and Retirement Committee at the end of August. According to the Los Angeles Times’ Taryn Luna, this was the “fourth time in five years [that] the California Legislature rejected a bill to allow its staff to unionize.” 

Political context 

California has had a Democratic trifecta–with a Democratic governor and Democrats holding majorities in both chambers of the Legislature–since 2011. Fourteen states currently have Democratic trifectas.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 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 bills by current legislative status

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

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB158: This trailer bill would provide for appropriations related to the budget, which included a proposed tax credit for union dues. 
    • Assembly Budget Committee introduced.  
    • Governor signed Sept. 29, secretary of state assigned a chapter number (Chapter 737, Statutes of 2022).
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer that the union alleges to be in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship. 
    • Governor signed Sept. 29, secretary of state assigned a chapter number (Chapter 823, Statutes of 2022).
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship. 
    • Governor vetoed Sept. 28. Consideration of governor’s veto pending in the Senate.

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Union Station: U.S. Supreme Court begins 2022-2023 term with seven petitions to review public-sector union cases

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U.S. Supreme Court begins 2022-2023 term with seven petitions to review public-sector union cases

The Supreme Court’s next term will begin on Monday, Oct. 3. As of Sept. 29, appellants had filed seven petitions for writs of certiorari—requests for the Supreme Court to review a lower court’s ruling—in public-sector union cases we’re tracking. The Supreme Court began considering petitions for this term on Wednesday, Sept. 28.  

Petitions filed for the 2022-2023 term 

The court held its first conference for the term, where it reviews petitions filed over the summer, on Sept. 28. Only one of the seven petitions we’re watching, Adams v. Teamsters Union Local 429, was on the list of petitions for the justices to consider during this conference. 

The Supreme Court receives 7,000 to 8,000 petitions every year. In order for a petition to be granted, at least four of the nine justices must vote to hear the case. Between 2007 and 2021, the court issued opinions in an average of 75 cases per year. 

The following seven petitions from public-sector union cases are currently pending before the Supreme Court. This outline includes a link to the Supreme Court docket for each case, as well as available documents and case information. 

Adams v. Teamsters Local Union 429

  • Appealed from the Third Circuit.
  • Docketed April 22, 2022.
  • Distributed for conference on Sept. 28, 2022.
  • Question presented in the petition: “For whom does this Court’s affirmative consent waiver requirement set forth in Janus apply: nonmembers currently or previously employed in agency shop arrangements, like Mark Janus—as several lower courts have held—or employees, like Petitioners, who sign an agreement to pay a union, such as union membership card or dues deduction authorization?”
  • Questions presented in the respondents’ briefs:
    • Teamsters Union Local 429: “Whether public employees who voluntarily joined a union, signed written agreements to pay membership dues via payroll deduction for a one-year period, and received membership rights and benefits in return, suffered a violation of their First Amendment rights when their employer made the deductions that they affirmatively and unambiguously authorized?”  
    • Pennsylvania Attorney General Josh Shapiro (D), et al.: “When public employees voluntarily joined a union and affirmatively authorized union dues to be deducted from their paychecks, did their public employer violate the First Amendment by making those deductions?” 
    • Lebanon County, Pennsylvania: “Whether the Petitioners lack standing to challenge Union and County Respondents for monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus … as the Third Circuit made no error of law, there is unity amongst the Circuit Courts of Appeal as to this issue, and Petitioners’ raise new issues within the writ, as to whether Janus applies to union members who signed union membership cards with dues authorization deductions?”

File v. Brost

Cooley v. California Statewide Law Enforcement Association

  • Appealed from the Ninth Circuit. 
  • Docketed Sept. 9, 2022. 
  • Not yet distributed. 
  • Question presented in the petition: “Does the Constitution allow a public-sector union to enter into a contract with a state employer that restricts a public employee’s constitutional right to resign his union membership?” 
  • Respondents have until Oct. 11 to file briefs in opposition.

O’Callaghan v. Drake

  • Appealed from the Ninth Circuit. 
  • Docketed Sept. 9, 2022. 
  • Not yet distributed. 
  • Question presented in the petition: “Whether a union can trap a government worker into paying dues for longer than a year under Janus[.]” 
  • Respondents have until Oct. 11 to file briefs in opposition.

Polk v. Yee & Quirarte v. United Domestic Workers AFSCME Local 3930 (consolidated in the circuit court)

  • Appealed from the Ninth Circuit. 
  • Docketed Sept. 8, 2022.
  • Not yet distributed. 
  • Questions presented in the petition
    • “Do states and unions need clear and compelling evidence that nonmembers of a union waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from those individuals?” 
    • “When a union acts jointly with a state to seize union payments from nonmembers’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?”
  • Respondents have until Oct. 11 to file briefs in opposition.

Savas v. California State Law Enforcement Agency

  • Appealed from the Ninth Circuit. 
  • Docketed Sept. 8, 2022.
  • Not yet distributed. 
  • Questions presented in the petition
    • “Does it violate the First Amendment for a state and union to compel objecting employees to remain union members and to subsidize the union and its speech?” 
    • “To constitutionally compel objecting employees to remain union members and to subsidize the union and its speech, do states and unions need clear and compelling evidence the objecting employees waived their First Amendment rights?” 
  • Respondents have until Oct. 11 to file briefs in opposition.

Wilford v. National Education Association

  • Appealed from the Ninth Circuit. 
  • Docketed Sept. 19, 2022. 
  • Distributed for conference on Oct. 7, 2022.  
  • Questions presented in the petition
    • “Whether the Ninth Circuit erred by basing a defense to § 1983 on ‘equality and fairness’ rather than determining whether the common law in 1871 provided a good-faith defense to a private party for the most analogous tort.”
    • “Whether the remedy Petitioners seek is equitable restitution such that a good-faith defense to money damages, if it exists, does not apply.”
    • “Whether a good-faith defense, if it exists, applies only to individuals, not legal entities like the Respondent unions.” 
    • “Whether the Ninth Circuit erred by failing to give Janus truly retroactive effect.” 
  • Respondents waived the right to respond.

Historic trends

In the analysis below, cases appealed in joint petitions are counted individually.

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 200 public-sector union lawsuits in federal and state courts, 60 of which have been appealed to the Supreme Court since the 2018-2019 term. So far, the court has not heard any of these subsequent appeals, although in 2018 it sent one case back to the Eighth Circuit to be reconsidered in light of Janus. (The court denied a second appeal in the same case in 2020.)

During its 2021-2022 term, the court denied petitions in 33 public-sector union cases. During the 2020-2021 term, the court denied petitions in 13 cases. During its 2019-2020 term, it denied four petitions. During its 2018-2019 term, it denied two petitions and sent one back to the circuit court.

About the Supreme Court

The Supreme Court consists of nine justices who are nominated by the president and confirmed by the U.S. Senate. President George H.W. Bush (R) appointed Justice Clarence Thomas to the court. President George W. Bush (R) appointed Chief Justice John Roberts and Justice Samuel Alito. President Barack Obama (D) appointed Justices Elena Kagan and Sonia Sotomayor. President Donald Trump (R) appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. President Joe Biden (D) appointed Justice Ketanji Brown Jackson, who joined the court in June 2022. 

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. 

To subscribe to Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 149 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 bills by current legislative status

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

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Incumbent Josh Kaul (D) and Eric Toney (R) running for Wisconsin attorney general

Incumbent Josh Kaul (D) and Eric Toney (R) are running for Wisconsin attorney general on Nov. 8, 2022.

Kaul was elected in 2018, defeating incumbent Brad Schimel (R) 49.4% to 48.8%. Before Kaul took office, a Republican had held the office since 2007.

Sabato’s Crystal Ball senior columnist Louis Jacobson named this election as one of the five most competitive attorney general elections in 2022, writing, “When Kaul won the office in 2018, his vote margin was narrow and tracked the showing of Democratic gubernatorial nominee Tony Evers. Evers is facing a tough reelection in 2022, and so is Kaul. … [U]ltimately, [Kaul’s] fate will probably mirror whatever happens to Evers in November, and possibly the result of the U.S. Senate race between GOP incumbent Ron Johnson and Democratic Lt. Gov. Mandela Barnes.”

Kaul’s campaign website says, “As Attorney General, Josh’s top priority is public safety. … [H]is administration has investigated and/or prosecuted some of the most serious offenses in the state, including homicides, sexual assaults, robberies, internet crimes against children, and drug trafficking.” The website says, “[Kaul’s] administration has fought crime, protected our natural resources, and defended our rights, taking on tough issues and getting results.” Kaul’s career before he was elected attorney general included working as an assistant U.S. attorney in the U.S. District Court for the District of Maryland and as a voting rights attorney. Kaul’s mother, Peggy Lautenschlager (D), served as attorney general from 2003 to 2007.

Toney was elected district attorney in Fond du Lac County in 2012 and was re-elected in 2016 and 2020. Toney’s campaign website says he is running for attorney general to “restore the Department of Justice’s mission to fight crime, support law enforcement, protect families, and enforce the rule of law,” saying that Kaul had “failed to support law enforcement, politicized the Department of Justice, failed to defend our election laws, has rejected the title of Wisconsin’s ‘Top Cop’ and has begun to systematically defund the Department of Justice’s ability to prosecute cases[.]”

The attorney general is the head of the Wisconsin Department of Justice and the chief legal officer for the state. During their campaigns, Kaul and Toney have addressed issues such as public safety, Department of Justice and law enforcement funding, crime in Milwaukee, the state’s 1849 abortion law, drug trafficking, election access and security, and firearm regulations.

In 2018, Democrats gained a state government triplex in Wisconsin when Democratic candidates defeated Republican incumbents in the elections for governor and attorney general, and the Democratic secretary of state was re-elected. All three offices are up for election again in 2022.

Across the U.S., 23 states have Republican triplexes, 18 have Democratic triplexes, and 9 have divided governments where neither party holds triplex control.

This election is one of 30 attorney general elections taking place in 2022. All 50 states have an attorney general who serves as the state’s chief legal officer. In 43 states, the office is an elected post. There are currently 27 Republican attorneys general and 23 Democratic attorneys general.



Three candidates running in Michigan’s 7th Congressional District

Incumbent Elissa Slotkin (D), Tom Barrett (R), and Leah Dailey (L) are running in the general election for Michigan’s 7th Congressional District on Nov. 8, 2022.

Michigan’s congressional district boundaries were redrawn after the 2020 census. Slotkin was first elected to represent Michigan’s 8th Congressional District in 2018, defeating incumbent Mike Bishop (R) 50.6% to 46.8%. In 2020, she was one of seven Democrats to win a House district that voted for former President Donald Trump (R) in the 2020 election. In December 2021, Slotkin announced that she would run for re-election in the redrawn 7th District, saying, “This new district contains nearly two-thirds of the population that I currently represent, my current congressional headquarters, and my campaign offices from 2018 and 2020.”

The redrawn 7th District encompasses Clinton, Ingham, Livingston, and Shiawassee counties, most of Eaton County, and parts of Oakland and Genessee counties, as well as Lansing, the state’s capital. According to data from Daily Kos, voters in the redrawn 7th District backed President Joe Biden (D) in the 2020 presidential election over former President Donald Trump (R) 49.4% to 48.9%.

Slotkin said, “After three years of representing this area of Mid-Michigan in Congress, I understand the mandate that families here expect me to prioritize: making daily life more affordable by lowering the cost of prescription drugs and child care; rebuilding Michigan’s manufacturing capacity by creating good-paying American jobs that cannot be outsourced; and not letting China eat our lunch.” On her campaign website, Slotkin said, “I’m running for re-election … because I want to build the next generation of cars and chips here in the U.S.; lower the cost of prescription drugs; fight for the Roe standard to preserve women’s personal freedom; and prevent corporate money from warping the political process.”

Before she was elected to Congress, Slotkin was a Middle East analyst in the CIA and worked in national security under Presidents George W. Bush (R) and Barack Obama (D).

Barrett was elected to represent Michigan Senate District 24 in 2018. Before serving in the Senate, Barrett represented District 71 in the Michigan House of Representatives from 2015 to 2019. Barrett served in the U.S. Army during Operation Enduring Freedom and Operation Iraqi Freedom and was a helicopter pilot in the Michigan Army National Guard.

In his response to Ballotpedia’s Candidate Connection survey, Barrett said he was running for Congress “to cut inflation by opposing reckless spending in Washington D.C. to lower the cost of living.” In order to “[m]ake America energy independent again,” Barrett said he would “work to expand America’s energy production, open pipelines, increase drilling, and end our reliance on foreign oil.” On his campaign website, Barret said, “My opponent, Elissa Slotkin, has voted with President Biden every single time – a perfect 100% voting record in support of his disastrous policies.” He said, “[Slotkin’s] support for corporate welfare, slashing domestic energy production, open borders, and higher inflation, is crushing Mid-Michigan families.”

Democratic and Republican House campaign committees have prioritized this election. The Democratic Congressional Campaign Committee (DCCC) included Slotkin in Frontline, its program to help Democratic incumbents win re-election in competitive House districts. The National Republican Congressional Committee (NRCC) included the 7th District in its target list and designated Barrett as a member of the highest tier of its Young Guns program. According to Daily Kos, as of Sept. 19, the DCCC, House Majority PAC, NRCC, and Congressional Leadership Fund had spent more combined in this race than in any other House district.

The outcome of this race will affect the partisan balance of the U.S. House of Representatives in the 118th Congress. All 435 districts in the House are up for election. Democrats hold a 221-212 advantage in the U.S. House with two vacancies.



Union Station: Appellate courts issue rulings in three public-sector union lawsuits

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Appellate courts issue rulings in three public-sector union lawsuits

Two three-judge appellate panels, one from the U.S. Court of Appeals for the Fourth Circuit and one from the U.S. Court of Appeals for the Ninth Circuit, issued rulings in three lawsuits involving public-sector union fees or dues in the past week. 

Fourth Circuit: Mattos v. AFSCME Council 3

In this case, Maryland public employees who were not members of AFSCME Council 3 filed a class-action complaint against the union in the U.S. District Court for the District of Maryland in September 2019. The plaintiffs alleged the union “violated [their] constitutional rights by compelling them to pay agency fees as a condition of their employment and by collecting agency fees from them without consent” and sought a refund of those fees. 

On April 27, 2020, U.S. District Judge George L. Russell III ruled in favor of the union, writing, “Plaintiffs’ § 1983 claim for damages is barred by the good-faith defense, and Plaintiffs lack standing to seek declaratory judgment.” 

On Sept. 16, 2022, U.S. Circuit Judge Robert King, U.S. Circuit Judge Steven Agee, and Senior U.S. Circuit Judge Barbara Keenan upheld the district court’s ruling. The judges wrote in the unpublished per curiam opinion:

“On appeal, Appellants argue that the district court erred in allowing AFSCME to assert a good-faith defense to its 42 U.S.C. § 1983 claim, and that this court should decline to recognize a good-faith defense. However, after Appellants’ brief was filed, we decided the issue of whether a union can assert a good-faith defense in a Janus claim under § 1983 in Akers v. Maryland State Educ. Ass’n [in 2021.] … We concluded, in accordance with six other courts of appeals, that the good-faith defense is available to private parties sued under § 1983, and that the union was entitled to assert the good-faith defense in the Janus context. … Because Akers directly applies to the legal question at issue here, we hold that the district court did not err in determining that AFSCME was entitled to assert a good-faith defense and granting AFSCME’s motion to dismiss.”

(In Akers v. Maryland State Education Association, King, U.S. Circuit Judge Henry Floyd, and U.S. Circuit Judge Stephanie Thacker ruled in favor of the union defendants, with King writing, “In sum, consistent with the weight of authority from our sister circuits, we affirm the district court and rule that the union defendants are entitled to utilize the good-faith defense with respect to the plaintiffs’ Janus claim. As a result, the defendants are not required to refund the representation fees that the plaintiffs paid to the union defendants prior to the Janus decision.”)

President Bill Clinton (D) appointed King to the court, President George W. Bush (R) appointed Agee, and President Barack Obama (D) appointed Keenan.   

The case name and number are Mattos v. AFSCME Council 3 (20-1531). 

Ninth Circuit: Ochoa v. Public Consulting Group, Inc. and Wright v. SEIU Local 503

In Ochoa v. Public Consulting Group, Inc., plaintiff Cindy Ochoa sued SEIU Local 775 and others, including  Public Consulting Group, Inc., in the U.S. District Court for the Eastern District of Washington in September 2018. Ochoa, an in-home healthcare provider, alleged union dues had been withheld from her pay and paid “to a union to which she does not belong and does not want to belong, in part based on a signature forged by a union representative.” In part, Ochoa asked the court for declaratory judgments that the defendants had violated her First Amendment rights by “withdrawing union dues without her consent” and by “failing to employ and abide by procedural due process safeguards protecting her rights.” She filed an amended complaint in May 2019 seeking “declaratory judgment that Defendants violated her First Amendment rights by failing to employ procedural safeguards protect the same.”

On Oct. 4, 2019, U.S. District Judge Thomas O. Rice wrote that Ochoa “failed to demonstrate she has Article III standing [to pursue prospective relief].” Rice said Ochoa did not show that there was “a substantial likelihood of a similar, future deprivation.” 

On Sept. 19, 2022, Senior U.S. Circuit Judge Richard Paez, U.S. Circuit Judge Jacqueline Nguyen, and U.S. District Judge for the District of Minnesota John Tunheim upheld Rice’s decision. Writing for the court, Paez said, “Ochoa does not have standing to bring any claims for prospective relief. And although the district court erred in holding that [defendants Public Partnerships LLC and Public Consulting Group, Inc.] are not state actors, Ochoa has not alleged facts sufficient to support a Fourteenth Amendment due process claim or a claim for violation of state law.” 

In a similar case, Wright v. SEIU Local 503, retired Oregon Health Authority employee Jodee Wright filed a complaint in March 2020 in the U.S. District Court for the District of Oregon alleging SEIU 503 deducted union dues based on a forged signature and had violated her First and Fourteenth Amendment rights. 

On Sept. 28, 2020, U.S. District Judge Michael J. McShane wrote that Wright’s “claim for prospective relief is moot” and her “federal claims for relief fail on the merits.” McShane said, “[T]he Court declines to exercise supplemental jurisdiction in this case. Oregon courts should hear Wright’s claims brought under Oregon law.”

On Sept. 19, 2022, the same three-judge panel that ruled in Ochoa upheld McShane’s decision. Paez wrote:

“Wright argues that [Janus v. AFSCME] created a constitutional ‘duty’ for the State to ensure that the employees listed in SEIU’s certification had duly authorized dues deducted from their salaries. … As we recognized in [Belgau v. Inslee], Janus ‘in no way created a new First Amendment waiver requirement for union members before dues are deducted pursuant to a voluntary agreement.’ … Janus imposes no affirmative duty on government entities to ensure that membership agreements and dues deductions are genuine. … 

“At bottom, in light of Belgau and the state action analysis, SEIU does not qualify as a state actor. Therefore, Wright’s claim for retrospective relief against SEIU fails for lack of state action.” 

Paez wrote, “We affirm the district court’s dismissal of Wright’s claims for prospective relief against all Defendants for lack of jurisdiction and her claims for retrospective relief against SEIU for failure to allege state action under § 1983.”

Clinton nominated Paez to the Ninth Circuit, and Obama nominated Nguyen. Clinton nominated Tunheim to the U.S. District Court for the District of Minnesota.

The case names and numbers are Cindy Ochoa v. Public Consulting Group, Inc. (19-35870) Jodee Wright v. SEIU Local 503 (20-35878). 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 149 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 bills by current legislative status

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

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship.
    • Governor vetoed Sept. 18. 
  • California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization. 
    • Democratic sponsorship.
    • Governor signed Sept. 18, secretary of state assigned a chapter number (Chapter 412, Statutes of 2022).
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship. 
    • Governor vetoed Sept. 18. Consideration of governor’s veto pending in the Senate. 

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Union Station: UW Health nurses’ strike called off after agreement to seek counsel from Wisconsin Employment Relations Commission

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UW Health nurses’ strike called off after agreement to seek counsel from Wisconsin Employment Relations Commission

University of Wisconsin Hospitals and Clinics Authority (UW Health) nurses called off a planned three-day strike after hospital management and nurses agreed to ask the Wisconsin Employment Relations Commission whether the hospital may legally recognize the union.

Background

SEIU Healthcare Wisconsin represented UW Health nurses until 2014. When the union’s contract expired, UW Health representatives said that 2011 Wisconsin Act 10, which former Gov. Scott Walker (R) signed into law, prevented it from negotiating a new contract. According to a 2011 memo from the Wisconsin Legislative Council, “Act 10 [eliminated] collective bargaining for … employees of the UW Hospitals and Clinics Authority.” 

UW Health nurses began organizing in 2019. According to the Milwaukee Journal Sentinel’s Molly Beck, “UW nurses argue they have not been public employees since the University of Wisconsin Hospitals and Clinics Authority, which includes UW Health, was created in 1995, making union recognition possible under the law.” 

The Sentinel’s Jessica Van Egeren wrote, “In the opinion of the nurses, clarity came on June 2 when Wisconsin Attorney General Josh Kaul — at [Gov. Tony Evers’ (D)] request after he met virtually with more than 400 nurses — issued a formal opinion that stated University of Wisconsin Hospitals and Clinics Authority can voluntarily engage in the collective bargaining process with its nurses, but it is not required to do so.” 

Kaul wrote in the opinion, “In summary, although this opinion does not reach a conclusion on the issue, it appears that the Peace Act [a subchapter of chapter 111 of the Wisconsin Statutes] includes the Authority in its coverage based on the statute’s plain text. Assuming that the Authority is not covered by the Peace Act [and, thus, is not required to collectively bargain], I conclude that it is within the Authority’s statutory power to voluntarily engage in collective bargaining.”

In 2021, the Wisconsin Legislative Council stated, “Under current law, as affected by 2011 Act 10, a collective bargaining status is not recognized for UWHCA employees. In particular, UWHCA does not have a duty to engage in collective bargaining with represented staff, and employees do not have a right to be recognized. There is no obligation on either party to meet and confer in good faith for purposes of collective bargaining. … In summary, UWHCA has no duty to recognize a union for purposes of collective bargaining on wages, hours, and conditions of employment, but a union representing employees could have arguments for other alternatives. In particular, employees may seek to ‘meet and consult’ with UWHCA to discuss those topics, may argue for NLRA coverage, or may seek voluntary recognition by UWHCA.”  

On Aug. 24, UW Health nurses voted to strike from Sept. 13-16 if UW Health management did not agree to recognize and negotiate with the union. Before the vote, at least 1,500 nurses signed an online form supporting unionization. According to NBC15’s Nick Viviani, 2,600 nurses would be eligible to unionize.

UW Health representative Emily Kumlien said in August, “While UW Health can appreciate the idea of social activism, whether anyone supports or opposes recognizing a union to engage in collective bargaining is irrelevant until we determine whether one is legally allowed. … The attorney general has said he believes we can, but by his own admission, states that his opinion is not law and that only the courts or the Legislature can provide a conclusive answer. … UW Health will not violate the law.” 

The agreement 

According to Gov. Tony Evers (D), mediation began on Sept. 7 and continued through Sept. 11, including meetings at the governor’s residence. On Sept. 12, Evers announced at a press conference that the hospital and nurses had reached an agreement. According to a summary from UW Health, the parties “agreed to file a joint petition with the Wisconsin Employment Relations Commission (WERC) for a ruling ‘on whether the Peace Act applies to UWHCA.’” 

According to WUWM’s Chuck Quirmbach, “The Wisconsin Employment Relations Commission is expected to look at the nurses contention that UW Health is not banned from recognizing their union, and whether a state labor law recognizing collective bargaining for public sector workers—it’s often called the Peace Act—covers the health care provider.” 

Cap Times’ Natalie Yahr wrote, “If UW Health is covered by the Peace Act, it would be required to bargain with the nurses’ union. … [Should the agency] determine that UW Health is not covered by the Peace Act, there will be a subsequent process to determine whether the hospital is permitted to voluntarily recognize and bargain with the union.”

UW Health CEO Dr. Alan Kaplan said, “We said for over a decade that the legal situation does not allow us to recognize a union. I know others have different opinions. This agreement finally sets forth a path to resolve the question once and for all.” 

According to Quirmbach, “It’s expected to take a few months to get some answers in the UW Health case, or longer if the two sides wind up in court.” Beck wrote, “The matter could ultimately end up at the Wisconsin Supreme Court, which is controlled by conservatives 4-3.” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 149 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 bills by current legislative status

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

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB2556: This bill would change the timeframe for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
    • Democratic sponsorship.  
    • Enrolled and presented to the governor Sept. 9. 
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.  
    • Enrolled and presented to the governor Sept. 13.  

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Union Station: Illinois Appellate Court ruling allows collective bargaining amendment to remain on the ballot

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Illinois Appellate Court ruling allows collective bargaining amendment to remain on the ballot 

A three-judge panel of the Illinois Fourth District Appellate Court affirmed Circuit Judge Raylene Grischow’s May 2022 denial of a petition to remove Amendment 1, the Right to Collective Bargaining Measure, from the ballot. 

Background

Amendment 1 is a legislatively referred constitutional amendment that Illinois voters will decide on Nov. 8. 

The amendment would add the following language to Article I of the Illinois Constitution:

  1. “Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.”
  2. “The provisions of this Section are controlling over those of Section 6 of Article VII.”

In April 2022, two Chicago Public School teachers and two parents filed a petition and complaint in circuit court against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller, seeking to remove the proposed amendment from the ballot.  

The petitioners claimed the amendment would violate the Supremacy Clause of the U.S. Constitution because the National Labor Relations Act (NLRA) would preempt the amendment. The petitioners said that as taxpayers, they had standing to sue to prevent state funds from being used to put an unconstitutional measure on the ballot. 

In May 2022, Circuit Judge Raylene Grischow of the Seventh Judicial Circuit Court in Sangamon County denied the petitioners’ request to have the amendment removed from the ballot, writing that “the Court has no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional” and that the petitioners “[offered] no basis for preventing the Amendment’s submission to the voters merely because some anticipated applications may be preempted by federal law.” 

Grischow also said the amendment had applications that federal law would not preempt: that it “would create rights for public employees,” “would restrain the power of the General Assembly to pass laws restricting union security agreements,” and “would act as a state-law failsafe to preserve rights for private-sector employees in the event the federal government ever decided to abandon the NLRA.” 

To read more about the petition and circuit court decision, see the June 10 edition of Union Station.

The court’s decision

On Aug. 26, a three-judge panel of the Illinois Fourth District Appellate Court—Justices Thomas M. Harris, John W. Turner, and Eugene G. Doherty—affirmed Grischow’s decision.

Harris wrote:

“We find the above case authority [including Fletcher v. City of Paris (1941) and Slack v. City of Salem (1964)] makes clear that courts may not act to enjoin a constitutionally authorized election. Like in Fletcher, petitioners’ challenge in this case is to the validity of Amendment 1. They seek a finding that the amendment is unconstitutional and unenforceable before it becomes effective. However, before the amendment process has been completed, their challenge is premature and not ripe for consideration. Amendment 1 may never be finally approved. As stated in Slack … the constitutional issues petitioners want resolved ‘may never progress beyond the realm of the hypothetical.’ …

“Here, because petitioners do not claim a violation of article XIV, their proposed action would seek judicial interference with a legislative process that is constitutionally authorized. Such interference is improper as expressed in Fletcher, and ultimately, there is no waste of public funds caused by the carrying out of an election that conforms to constitutional requirements. Further, petitioners’ challenge to the validity of Amendment 1 is premature until such time as it becomes effective. We note petitioners argue on appeal that even if their claim for injunctive relief may not be maintained, they could still successfully pursue declaratory relief. However, as respondents point out, Slack specifically applied its holding to a request for a declaratory judgment. Thus, like petitioners’ claim for injunctive relief, their request for declaratory relief is also premature.” 

The case name and number are Sachen v. Illinois State Board of Elections (4-22-0470). 

Perspectives

Support

Illinois Attorney General Kwame Raoul (D) said, “I am pleased with the 4th District’s decision, which will allow voters to decide whether Illinois’ constitution should be amended to include a ‘Workers’ Rights Amendment [sic]. We argued that the plaintiffs’ claims failed because the voters, not the courts, should decide whether to amend the constitution. I am happy the court agreed.” 

Opposition

Dylan Sharkey of Illinois Policy said, “[By the court’s] logic, the Illinois General Assembly could put a blatantly unconstitutional amendment on the ballot – such as prohibiting anyone from criticizing the government or outlawing a religion – and it could go on the ballot as long as it followed the right process.” 

About the Illinois Appellate Court

The Illinois Appellate Court is the intermediate appellate court in Illinois. It hears appeals from the Illinois Circuit Court, and its decisions can be appealed to the Illinois Supreme Court. The court has five districts. New judicial district maps went into effect on Jan. 1, 2022, the first time the boundaries had been redrawn since 1964. 

Judges are elected to the court in partisan elections for 10-year terms. Incumbents run in nonpartisan retention elections. The Illinois Supreme Court appoints judges to the court to fill vacancies.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 149 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 bills by current legislative status

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

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
    • Democratic sponsorship. 
    • Enrolled and presented to the governor Sept. 6. 
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship.  
    • Enrolled and presented to the governor Sept. 6.
  • Massachusetts H1946: This bill would allow public-sector employees to strike.
    • Democratic sponsorship.
    • Accompanied study order H.5023 Sept. 6. The order would authorize the Joint Committee on Labor and Workforce Development to study “certain House documents relative to wages, workers’ compensation and other related matters.”
  • Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Accompanied study order H.5023 Sept. 6.
  • Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Accompanied study order H.5023 Sept. 6.
  • Massachusetts H2038: This bill would amend the laws governing public-sector worker strikes.
    • Bipartisan sponsorship.  
    • Accompanied study order H.5023 Sept. 6.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.