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Sep 26, 201211:45 AMForward HR

with Diane Hamilton and Nilesh Patel

Did Wisconsin just recognize public sector collective bargaining as a fundamental right?

Did Wisconsin just recognize public sector collective bargaining as a fundamental right?

2011 Wisconsin Act 10 – the now famous and controversial law that essentially gutted collective bargaining rights for public employees – has been ruled unconstitutional. The decision appears to be the first by a Wisconsin court to recognize collective bargaining as a constitutionally protected fundamental right. It is not so broad. However, the decision is still a tremendous step for organized labor, assuming the decision is not reversed on appeal.

The lawsuit was brought by two unions representing Madison teachers and city of Milwaukee employees. Three challenges were brought against the constitutionality of various parts of Act 10. Since the unions were successful in the case, those sections are “null and void” for the moment.

This post is only going to cover part of the second challenge, which discusses how Act 10 violated the unions’ right to free speech and association under the Wisconsin constitution.

Unconstitutionality of Act 10

Judge Juan Colas’ decision reviewed whether Act 10 violated union employees’ rights to free speech and association under Article I, Secs. 3 and 4 of the Wisconsin Constitution. The following Wisconsin statutes, changed as a result of Act 10, were challenged:

1. Wis. Stat. Sec. 66.0506: requiring a referendum for wage increases above the cost of living for represented municipal employees.

2. Wis. Stat. Sec. 118.245: requiring a referendum for wage increases above the cost of living for represented school district employees.

3. Wis. Stat. Sec. 111.70(1)(f): limiting fair share dues agreements to public safety and transit unions.

4. Wis. Stat. Sec. 111.70(3g): prohibiting payroll deduction of dues for general employee unions.

5. Wis. Stat. Sec. 111.70(4)(mb): prohibiting municipal employers from collectively bargaining with general employee unions on anything but wages.

6. Wis. Stat. Sec. 111.70(4)(d)3: imposing certification and recertification requirements on general employee unions.

The unions argued that all of those restrictions only applied to employees that are part of a union. Non-union public employees can negotiate the terms of employment or wage increases beyond the cost of living. Furthermore, the prohibition on deducting membership dues from wages only applies to general labor organizations but exempts public safety and transit unions in some situations. On the other hand, the state argued that the changes do not take away the employees’ right to associate as a union, just that they limit the range and effectiveness of what unionized employees can bargain for.

The ruling and the parties acknowledged that there is no constitutional right to collective bargaining. However, Judge Colas wrote that, “when the government elects to permit collective bargaining, it may not make the surrender or restriction of a constitutional right a condition of that privilege.” The judge concluded that while Act 10 did not prohibit speech or associational activities, it did impose burdens on employees’ exercise of those rights when they work together in a union. The decision covers multiple ways Act 10 imposes burdens on union employees. As one example, non-union employees would enjoy the right to negotiate for raises beyond the cost of living while the price of being in a union would mean giving up those options. Another example is unions are expected to go through costly annual recertifications and the costs of those certifications can only be borne by union members, instead of all the employees in the bargaining unit. The ruling suggests that these types of restrictions provided an incentive for public employees to not join a union or that the restrictions impose penalties if they do join a union.

In the absence of evidence from the state that would justify an infringement of constitutional rights, Act 10 was found unconstitutional.

Implications and observations

Since the decision came out a day prior to writing this, it is too soon for me to comment on the full impact. Without reviewing both 2011 Wis. Act 10 and Act 32, I cannot state which parts of those laws are nullified by the decision. Here is what I can state:

1. The Walker administration plans on appealing the decision.

2. The infringement on constitutional rights appears to be a question of first impression, because the decision does not cite any Wisconsin cases that discuss the issue. In which case, I would expect the appellate court to certify and send the matter directly to the Supreme Court or the Supreme Court may decide to review the matter directly.

3. The issue I am hoping will get addressed on appeal is whether public unions are being unconstitutionally disfavored by the state of Wisconsin or whether public sector collective bargaining rights, being created by statute, can be organized and regulated at will by the state.

4. The decision confirms that “public employees have the right to advocate, either individually or through an association, and also the association has a right to engage in advocacy on behalf of its members. ... A State may not invade that constitutional protection either by a general advance prohibition against certain forms of advocacy ... or by attempting to punish the expression of views that it opposes.” See Hanover Township v. Hanover Community School Corporation, 457 F. 2d 456 (7th Cir. 1972). In other words, public employees have the right to associate and advocate and the state cannot punish them or disfavor them because of the advocacy. However, what if the state legislated that it was going to unilaterally dictate wages and terms and conditions of employment for all of its employees? What if the state, school district, or municipal employer simply treated unions like any other special interest or advocacy group, to which it would listen to anything they wanted to discuss, but whose advocacy it was not bound to accept? What if a union wanted a 5% raise for its members but the state, without paying attention to union membership, rewarded its top performers with a 7% raise and only gave a 2% raise to all others? I wonder if, in upholding the rights of public sector union employees, the decision also shows a path for minimizing the effectiveness of those rights.

5. If the decision is upheld, 2011 Act 10 may be gutted or its worst effects on public sector unions may be eliminated. While the decision provides an indication for how to constitutionally minimize the effectiveness of public sector unions, we do not know when the conditions would exist where the Legislature and governor could completely redesign the public sector collective bargaining framework to achieve such a goal. In the meantime, it is time to see how much of public sector collective bargaining reverted to what it was prior to the effective date of 2011 Wisconsin Act 10.

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About This Blog

 Diane Hamilton, PCC, SPHR, is the owner and founder of Calibra, a coaching and consulting firm focused on maximizing leadership potential. Nilesh Patel is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at Both bloggers are members of Wisconsin SHRM, which is dedicated to being the state leader in HR management and the premier source for HR expertise and resources. More information can be found at You can follow the WI SHRM blog at



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