Two Wisconsin operators unions have filed suit over Wisconsin’s well-known Act 10 law, arguing aspects of the legislation curtailing unions’ bargaining powers deprive them of free-speech rights.
The lawsuit comes after the International Union of Operating Engineers locals 139 and 420 filed a similar lawsuit in early 2018 only to withdraw it a few months later to await the outcome in the U.S. Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees. In the end, the Supreme Court decided in the Janus case that unions that required nonmembers to provide support payments were violating those employees’ free-speech rights.
Brian Hlavin, a lawyer representing the operating-engineers unions in their latest suit, is now arguing that the Janus decision has eroded certain provisions within Act 10 that have caused unions to lose members and suffer other harm.
Act 10, passed in 2011, is the best-known piece of legislation adopted under former Gov. Scott Walker. Widely seen as an affront to unions, the law has been challenged and affirmed many times in court.
The Janus decision, though, may have opened new avenues for attack, Hlavin said. The operating engineers’ latest suit names Gov. Tony Evers and Attorney General Josh Kaul, who are both newly elected Democrats, and James Daley, chairman of the Wisconsin Employment Relations Commission. Together, locals 139 and 420 represent about 10,000 workers in Wisconsin.
The case originated after a union shop represented by Local 139 in Marinette County missed a deadline for what’s known as a recertification vote, Hlavin said. Recertification votes must be held once a year to let union members decide if they want to continue being represented by a labor group. To win recertification, a union has to get votes from a majority of the employees at a particular employer, not just the majority of votes. In other words, people who choose not to vote are essentially voting “no.”
In the Marinette County case, a union shop missed its recertification election entirely following uncertainty about the deadline. The entire shop lost its union representation as a result.
And that was not only the instance when something similar happened. The same recertification rule caused a Local 420 chapter at the Milwaukee Public Schools to lose its union certification in November 2014. Although 100 percent of the recertification ballots cast in that election came from people who favored remaining in the union, a majority of employees did not vote and the union was not recertified that year.
Hlavin said Act 10 deprives employees of their free-speech rights as defined under Janus by counting a non-vote as a “no” vote for union representation.
“That’s the state compelling you to vote no,” Hlavin said. “I may want to not vote. I have a right to vote yes, I have a right to vote no and I have a right to abstain. But the state has said, ‘No, if you don’t vote, that counts as a no-vote.’ We think that’s compelled speech that Janus is saying the state can’t do.”
The lawsuit also argues that the Wisconsin Employment Relations Commission has wrongly interpreted Act 10 as outlawing agreements that unions and municipalities might strike over matters going well beyond collective bargaining. According to the suit, the commission has prevented certain municipalities from enlisting Local 139 to conduct workforce training, recruit seasonal workers and get help with health care coverage for workers.
The suit argues the Wisconsin Employment Relations Commission’s interpretations violate unions’ First Amendment rights and that the law is effectively regulating the content of the unions’ speech, in direcit violation of Janus.
The suit also argues Act 10 undermines freedom of association by preventing union members from deducting union dues from their wages.
“Act 10 was a heartless attempt to destroy public-employee unions in particular and unionism in general and we won’t sit idly by while our first amendment rights are being destroyed,” said Terry McGowan, president and business manager of Local 139.Follow @natebeck9