It may not be what you think.
On Friday, a 3-judge panel of the 7th Circuit Court of Appeals upheld Scott Walker's public sector union-busting Act 10 in its entirety. In a 2-1 decision, the majority decided that the evidence presented by the unions claiming violation of their first amendment rights of free speech and association didn't meet the standards required by constitutional law.
There are three active court cases challenging Act 10. This decision overturns the ruling made last March by U.S. District Judge William Conley, which voided two parts of the law: The prohibition on most public sector unions from collecting voluntary dues through payroll deductions, and the annual re-certification requirement for those unions.
While agreeing that Act 10 was politically motivated, Judges William Bauer and Joel Flaum argued, "As unfortunate as it may be, political favoritism is a frequent aspect of legislative action. These sorts of decisions are left for the next election."
In a dissenting opinion that supported the plaintiffs' claim that excluding certain "public safety" unions that had endorsed Walker for Governor from the law violated their constitutional rights, Judge David Hamilton wrote, "Perhaps a strike by motor vehicle inspectors might threaten the breakdown of public order and state government, but it's hard to see how. It's especially hard to see how the threat of a strike by motor vehicle inspectors could reasonably be deemed more significant than a strike by, say, correctional officers or many other law enforcement officers excluded by the new law."
Meanwhile, two other cases are wending their way through the state court system. In Madison Teachers, Inc., et. al. vs. Scott Walker, Dane County Circuit Judge Juan Colas found five provisions of Act 10 unconstitutional:
This provision that prohibits bargaining with general municipal employee unions over the issue of wages but only "total base wages" up to a Consumer Price Index cap and specifically excluded bargaining over any other compensation including overtime, premium pay, merit pay, and other forms of compensation.
The provision that requires that referendum be held before the employer could bargain regarding increase in total base wages above the CPI cap.
The statutory definition of "fair share" agreements that limited them to apply to only transit employee and public safety unions.
The provisions that restrict an employer from deducting union dues from employee pay and then remitting payment to the Union, and also required annual recertification elections of unions.
The provision that requires a pension contribution of the employee share by City of Milwaukee employees to the City's pension System.
This case, 2012AP002067, is currently on appeal and in the process of briefings.
The other case was filed last November by the Wisconsin Law Enforcement Association and is scheduled for a status hearing at the end of the month.
The WLEA complaint alleges that certain "provisions of Act 10 and Act 32 violate their associational, speech, petition and advocacy rights guaranteed by Art. I, §§ 3 & 4 of the Wisconsin Constitution, as well as their rights to equal protection under the law, as guaranteed by Art. I, § 1 of the Wisconsin Constitution."
This lawsuit may be even stronger than the MTI and Public Employees Local 61 case since it involves members of the very same union being treated differently under the law.
Rebecca Kemble reports for The Progressive magazine and website.