** WELCOME TO UNION STATION
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** JANUARY 8, 2021
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Welcome to _Union Station_, our weekly newsletter that keeps you abreast of the legislation, national trends, and public debate surrounding public-sector union policy.
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** SEVENTH CIRCUIT REJECTS CHALLENGE TO WISC. ACT 10
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On Dec. 17, 2020, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit rejected ([link removed]) a challenge to Wisconsin Act 10 ([link removed]) , omnibus legislation enacted in 2011 that introduced new requirements and regulations for public-sector labor unions.

 
** THE PARTIES TO THE SUIT
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The plaintiffs are the International Union of Operating Engineers, Local 139 ([link removed]) , and two of its members: Karen Erickson and Heath Hanrahan. IUOE Local 139 is an affiliate of AFL-CIO. According to its most recent filing ([link removed]) with the U.S. Department of Labor, IUOE Local 139 has 10,223 members. 

The defendants are James Daley, chairman of the Wisconsin Employment Relations Commission ([link removed]) , and the Wisconsin Legislature. 

 
** WHAT IS AT ISSUE, AND HOW THE LOWER COURT RULED
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On Aug. 26, 2019, the plaintiffs filed suit ([link removed]) in the U.S. District Court for the Eastern District of Wisconsin. They alleged the following Act 10 provisions violated their constitutional rights:

* Collective bargaining subject restrictions: Act 10 prohibited municipal government employers from bargaining collectively with public-sector unions over any condition of employment except wages.

* The plaintiffs alleged that "Act 10 has been interpreted and applied by the WERC to preclude any agreements between Unions and municipalities over any issues besides wages, even if not 'collectively bargained.' … Such an interpretation and application of Act 10 imposes an arbitrary restriction [on] Unions' ability to negotiate and/or contract with municipal employers on matters of significant public concern, outside of the collective bargaining context, in violation of the First Amendment and/or Fourteenth Amendment."
 

* Prohibition against payroll dues deductions: Act 10 prohibited municipal government employers from deducting union dues from union members' paychecks.

* The plaintiffs alleged that "Act 10's blanket prohibition on wage deductions for Union dues constitutes a content based restriction on public employees' First Amendment rights."
 

* Recertification elections: Act 10 required annual recertification elections for unions, with a requirement that at least 51 percent of all workers in the bargaining unit vote to recertify.

* The plaintiffs alleged that "by counting a non-vote as a 'no' vote, Act 10 violates the First Amendment rights of public employee non-voters to remain silent in the recertification process." 

In two separate orders (the first in March 2020 ([link removed]) and the second in April 2020 ([link removed]) ), U.S. District Court Judge Joseph Stadtmueller ([link removed]) , a Ronald Reagan (R) appointee, dismissed these arguments. Stadtmueller ruled that the union lacked standing to challenge Act 10's recertification requirements and bargaining subject limitations. He dismissed the plaintiffs' challenge to the prohibition against payroll dues deductions on the merits, citing a 2013 Seventh Circuit ruling (_Wisconsin Education Association Council (WEAC) v. Walker_) that upheld such prohibitions. 

The plaintiffs appealed to the Seventh Circuit, which held oral argument on Nov. 13, 2020.

 
** HOW THE SEVENTH CIRCUIT RULED
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The three-judge panel – Judges Joel Flaum, Ilana Rovner ([link removed]) , and Michael B. Brennan ([link removed]) – unanimously affirmed ([link removed]) the lower court's decision. Regarding the plaintiffs' dues deduction claim, Flaum, writing for the court, cited two U.S. Supreme Court precedents:

* _Ysursa v. Pocatello Education Association ([link removed]) _, a 2009 decision upholding a law prohibiting payroll dues deductions because "[the First Amendment] does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression." 
 
* _Janus v. AFSCME ([link removed]) _, a 2018 decision establishing that public-sector unions cannot require non-member employees to pay fees covering the costs of non-political union activities.  

Flaum wrote: 

Plaintiffs-appellants' contention that we should revisit WEAC because _Janus_ overruled Ysursa fares no better. _Janus_ held that the First Amendment prohibits compelled speech in the form of mandatory agency fees. It did not mention _Ysursa_, let alone overrule its holding that states have no obligation to provide any payroll deductions. Plaintiffs-appellants concede that '_Janus_ did not have the opportunity to have directly overruled or altered the framework of _Ysursa_.' Given that the Supreme Court does not normally overturn or dramatically limit its precedents sub silentio [i.e., under silence, or implicitly], we conclude that _Ysursa_ — and by extension, _WEAC_ — still controls.

Flaum, Rovner, and Brennan are Reagan, George H.W. Bush (R), and Donald Trump (R) appointees, respectively.

 
** WHAT COMES NEXT
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The plaintiffs have not said whether they will appeal the Seventh Circuit's decision. The case and number are _International Union of Operating Engineers, Local 139 v. Daley ([link removed]) _ (appellate court: 20-1672, 20-1724; district court: 2:19-cv-01233).

 
 

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** WHAT WE'RE READING
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* Honolulu Civil Beat, "The Continuing Clout Of Hawaii’s Public Worker Unions," Jan. 6, 2021 ([link removed])
 
* nwLaborPress.org, "Labor prepares 2021 state legislative agendas," Dec. 30, 2020 ([link removed])
 
* Illinois Policy, "Government unions invested $10M in Madigan, but could that end in 2021?" Dec. 23, 2020 ([link removed])

 
 

 

 

 
** THE BIG PICTURE
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** NUMBER OF RELEVANT BILL BY STATE
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We are currently tracking 10 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 ([link removed]) for a complete list of all the bills we're tracking. 

 
** NUMBER OF RELEVANT BILL BY CURRENT LEGISLATIVE STATUS
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** NUMBER OF RELEVANT BILL BY PARTISAN STATUS OF SPONSOR(S)
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** RECENT LEGISLATIVE ACTIONS
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* MARYLAND SB9 ([link removed]) : This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.

* Democratic sponsorship.
* First reading in Senate Finance Committee scheduled for Jan. 13.
 

* NEW HAMPSHIRE HB206 ([link removed]) : This bill would establish that collective bargaining strategy discussions in which only one party is involved would not be subject to the state's right-to-know law.

* Republican sponsorship.
* Introduced and referred to House Judiciary Committee Jan. 6.
 

* NEW YORK A00243 ([link removed]) : This bill would allow public-sector labor unions to reconsider and re-vote on written agreements that were initially voted down.

* Democratic sponsorship.
* Referred to Assembly Governmental Employees Committee Jan. 6.
 

* WASHINGTON SB5055 ([link removed]) : This bill would prohibit law enforcement personnel from entering into collective bargaining agreements that prevent, prohibit, or otherwise alter local government ordinances or charters providing for "civilian review of law enforcement personnel."

* Democratic sponsorship.
* Pre-filed for introduction Jan. 4.

 
 

 
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