Federal appeals court rejects Local 139’s challenge to Act 10

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The Seventh Circuit Court of Appeals has rejected a third federal lawsuit seeking to invalidate Act 10, the Wisconsin law restricting collective bargaining.

The International Union of Operating Engineers Local 139 and two of its individual members filed a lawsuit that claimed three parts of Act 10 violated their First Amendment rights to free speech and association. Local 139 represents more than 10,000 heavy-equipment operators in the construction industry and nearly 2,500 contractors throughout Wisconsin.

The lawsuit took issue with provisions of Act 10 that made it harder for general-employee unions to retain certification as exclusive bargaining agents, prohibited public-sector employees from collectively bargaining with their general employees over anything except base wages and prohibited public employers from deducting union dues from general employees’ paychecks.

The district court that took up the complaint ultimately dismissed it and denied a motion the state Legislature had made to intervene. Both the plaintiffs and the Legislature appealed the decisions to the Seventh Circuit.

The union argued that Act 10 in effect forces employees to vote “no” on certification questions at times when they in fact simply don’t want to vote at all. They said they had been “directly harmed by this provision of Act 10” in an April 2019 election. In that instance, Local 139 received 100% of all the ballots cast. But because a majority of the employees did not vote and Act 10 counted nonvotes as “no” votes, it was not recertified as the bargaining unit representative.

Judge Joel Flaum disagreed, writing that nothing in Act 10 stops members from voting, requires them to vote or directs them on how to vote.

“(T)he individual plaintiffs’ injuries depend on fewer than 51% of members choosing to participate in the election,” Flaum wrote. “That fact alone undermines plaintiffs-appellants’ ability to satisfy the requirement that any injury in fact be fairly traceable to Act 10’s recertification provision.”

The Seventh Circuit also agreed with the district court’s finding that the collective-bargaining count lacked standing. The union said municipal employers had approached Local 139 about providing services related to training, temporary staffing and health benefits. The employers, after the Wisconsin Employment Relations Commission advised them that such agreements would violate Act 10, declined to enter into the proposed deal.

The appellate judges said Local 139 still retains its right to speak and associate freely.

The plaintiffs also asked the Seventh Circuit to reconsider its decision to uphold Act 10’s payroll-deduction prohibition in light of the U.S. Supreme Court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees. The country’s high court then found that unions that had been requiring nonmembers to provide support payments were violating employees’ free-speech rights.

Judge Joel Flaum said that the plaintiffs made a “convoluted attempt” to distinguish the case from precedent in earlier Seventh Circuit decisions and found that the Janus case did not overrule the Supreme Court’s holding that states have no obligation to provide payroll deductions. The Seventh Circuit decided the district court’s previous decision to dismiss the claim was appropriate.

Because the judges affirmed the district court’s dismissal of all three counts, they agreed the Legislature’s motion to intervene was moot. Follow @WLJReporter