On Friday, January 18, the federal 7th Circuit Court of Appeals upheld the constitutionality of Act 10 in its entirety.
The decision overturns a decision issued in March of 2012 by the United States District Court for the Western District of Wisconsin. The lower court had struck down Act 10’s annual union recertification election requirement and the law’s provision barring municipalities from withholding union dues from the paychecks of its employees. While the 7th Circuit split, 2-1, on the union dues issue, it was unanimous regarding the representation election provision.
The 7th Circuit also unanimously affirmed the lower court’s decision upholding the constitutionality of Act 10’s provisions regarding what can and can’t be bargained over – including the distinctions between mandatory and prohibited subjects of bargaining for public safety employees and other employees.
The issue now, of course, is where do we go from here. It is not known at this time whether the parties who brought the suit will look to appeal the case to the United States Supreme Court. Additionally, Judge Colas’ state court opinion from September of 2012 is still pending on appeal. While the federal 7th Circuit’s decision covers many of the same issues, Judge Colas relied not just on the United States Constitution but also, in part, on the Wisconsin Constitution, something the federal 7th Circuit did not address.
At this time, our advice has not changed. Municipalities should continue to collect pension and health insurance contributions from their employees as required by Act 10. For non-public safety unions, we also recommend that municipalities agree to collective bargaining agreements that cover the base wage rate only and are no more than one year in length. Municipalities should also continue to review and implement revised employee handbooks.
As for all other questions, we recommend municipalities consult with their labor attorney. If you would like additional information regarding Acts 10 and 32 and the status of the litigation over these Acts, please contact Drew Cochrane or your Stafford Rosenbaum attorney.