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Mixed Court Decision for Wisconsin Anti-Union Law

A federal judge has upheld some provisions of a Wisconsin law that curtailed the collective-bargaining rights of public-employee unions, including those representing teachers, but struck down others.

U.S. District Judge William M. Conley of Madison, Wis., ruled Friday in a challenge to the measure brought by the Wisconsin Education Association Council, an affiliate of the National Education Association, and several other public-employee unions in the state.

Conley noted that the law, championed by Republican Gov. Scott Walker and passed last year amid rancorous debates and protests, distinguishes between "general" public-employee unions (including the teachers' unions) and "public-safety" unions representing many law-enforcement personnel and firefighters. Most of the public-safety unions supported Gov. Walker's election in November 2010. (Also Friday, a Wisconsin agency ordered a recall election for the governor.)

Wisconsin lawmakers subjected the general unions to provisions that eliminate mandatory dues and limit the scope of collective bargaining to annual wage increases, require annual recertification by a majority of union members, and bar the voluntary withholding of union dues from the employee's government paycheck. The law also requires general unions to hold annual recertification elections, with approval by an absolute majority necessary and not just of those voting. The law also bars the withholding of union dues from the paychecks of general public-employee unions.

The rights of public-safety unions were left unchanged.

The state seeks to justify the distinction by arguing that it is rationally related to the legitimate government interest of preventing the disruption of essential government services, while the general unions challenging the disparate treatment view it as an "award of naked political patronage," as the judge characterized their view.

Importantly for the growing movement among other states to restrict public-employee rights, Judge Conley said in his March 30 opinion in Wisconsin Education Association Council v. Walker that the states are generally free to rein in such rights, provided they go about it the right way.

"There is no dispute that a state may bar its public employees from engaging in any form of collective bargaining," the judge said. "The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category."

The judge said the answer is yes when the state has a rational reason for doing so. Conley upheld the provisions of the Wisconsin measure that bar general unions (including teachers' unions) from collective bargaining over issues beyond "total base wages," such as hours and other conditions of employment. Those provisions also bar the general unions from negotiating "fair-share" agreements under which they can charge service fees to non-union members who benefit from the unions' collective-bargaining efforts.

"Wisconsin's governor and legislature may have concluded that they would extend full bargaining rights to those public unions representing members performing only the most essential functions for maintaining public safety--a political judgment left to those branches of government," the judge said. "The fact that many of these same unions may coincidentally ... be the most supportive of the party in power at the time of enactment is not enough to heighten the court's legal scrutiny. ... Under our system of government, this is deemed a matter for the next election."

Judge Conley struck down two provisions of the law: the annual recertification requirement and the provision barring the withholding of union dues from paychecks.

As for the recertification requirement, the judge said, "It seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law."

And as for the dues withholding, Judge Conley said "it is even more irrational" to deny voluntary members of a union to have their government employer collect dues through their paychecks while applying longstanding rules to the public-safety unions.

Mary Bell, the president of the Wisconsin Education Association Council, issued a statement praising the judge's decision striking down those last two provisions.

"But the fact of the matter is that our members still don't have their bargaining rights back. And the fight continues until workers' rights to negotiate for fair wages and safe working conditions are fully restored, " she said.

Wisconsin Attorney General J.B. Van Hollen, a Republican, said in a statement that the general unions' challenge failed on all but two issues. "Although we are still reviewing the adverse portions of the ruling and considering the options, we are confident that we would prevail in an appeal if we choose to go that direction."

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