What Does the Historical Treatment of Public Sector Bargaining Rights Reveal About Possible Challenges to the Wisconsin Bill?
When Congress enacted the National Labor Relations Act (NLRA) in 1935, which codified collective bargaining rights to private employees’ unions, it explicitly exempted public employers – governments and their agencies – from the obligation to engage in collective bargaining. While this did not preclude states from experimenting with collective bargaining for public employees, local and state governments were generally reluctant to do so under the assumption that it would “endanger the public good”. State governments had very little experience with collective bargaining, and feared that requiring government employers to allowing collective bargaining would: (1) amount to an illegal delegation of governmental powers to public unions; and (2) potentially disrupt important public services.
However, in the 1960’s, a trend began toward acceptance of public employee bargaining rights, and the Supreme Court observed that the “desirability of labor peace is no less important in the public sector”. An increasing resemblance between public and private employers, and an increasing difficulty in distinguishing between public and private employees in some cases, helped cause a shift in favor of treating public and private employees alike. Interestingly, one of the first states to actually codify certain bargaining rights to public employees by statute was Wisconsin, and more than thirty other states guaranteed bargaining rights by statute over the next few decades. Congress followed suit by enacting the Civil Service Reform Act of 1978 which grants bargaining rights to federal employees.
Nevertheless, collective bargaining in the public sector did not achieve the same protections as collective bargaining in the private sector. For instance, with the exception of limited rights granted to specific unions in certain states (i.e. law enforcement and teachers), government workers have been almost universally denied the right to strike, and the Supreme Court has upheld state statutes denying public employees’ the same right. Moreover, while the First and Fourteenth Amendments encompass the right to form and join unions through freedom of association, legislatures may restrict public employees’ right to unionize if the restrictions are the least drastic means of achieving a “substantial and legitimate state end.” Courts have also uniformly rejected the notion that the Constitution requires public employers to bargain collectively with employee unions, even if they are formed.
Ultimately, the historical record of public sector collective bargaining indicates that a straightforward challenge to the Wisconsin bill will be ineffectual. Congress explicitly excluded public bargaining from the NLRA, thus allowing state and local governments to treat the issue as each sees fit. Many states have withheld public sector collective bargaining without issue, and “experimentation” with different collective bargaining schemes like Wisconsin is doing now has been historically encouraged. Courts have taken great care to maintain that public employees are not entitled to collective bargaining rights in the same way as private employees. Moreover, because courts have not recognized that the federal Constitution provides any guarantees to public bargaining, invoking the federal Constitution to override Wisconsin’s law is not a viable option. In general, the theme among lawmakers and courts is that collective bargaining is not actually a “right” when it comes to public employees unless it is guaranteed by a constitution – constitution – Wisconsin’s constitution does not guarantee this right. Instead, public bargaining in Wisconsin is treated as a privilege which may be granted or removed by legislative statute, which is the general approach the country at large.
How Might Opponents of the Wisconsin Bill Approach a Court Challenge it in Light of These Restraints?
One way to dispute the bill is to bring a procedural challenge, and the District Attorney of Dane County has already done so. The plan to curtail collective bargaining was originally just a part of Governor Walker’s larger “budget repair bill,” but after 14 out of 15 Senate Democrats fled the state to block its passage, the remaining 18 Republican Senators extracted the section on public bargaining and removed expenditures from the language in order to force a vote. The Republicans voted by special assembly, and provided no advanced notice of the meeting, so the Democratic Senators outside the state were unable to return in time. The procedural challenge addresses whether the special assembly was properly utilized, and whether at least a 24-hour notice was required to call such a meeting. A Dane County judge has already issued an order restricting the bill from being published as law until the merits of the legal challenges can be heard, and that order has been appealed.
While the procedural challenge may delay bill, it will likely not serve as a permanent stop to the bill’s enforcement as proponents can simply call for another vote on the bill while complying with all procedural requirements. Challengers are likely to additionally allege that the bill violates the Wisconsin state constitution. The equal protection clause of the Wisconsin state constitution requires that the state treat all people who are similarly situated similarly. Because Governor Walker arguably sifted through and chosen certain public sector unions to be exempt from having collective bargaining rights stripped (such as law enforcement and firefighters), equal protection challenges are likely to arise.
The guarantee of equal protection under the Wisconsin state constitution is substantially equivalent to the guarantee of equal protection under the Fourteenth Amendment to the U.S. Constitution. Therefore, an equal protection challenge will be subject to the rational basis test articulated by the Supreme Court which states that a law will survive such a challenge so long as “there is a rational relationship between disparity of treatment and some legitimate governmental purpose.” Because it appears that Walker exempted specifically the unions that supported his campaign, opponents may have room to contend that the bill’s disparity of treatment is not rationally related to a legitimate governmental purpose. However, courts have traditionally proven quite deferential to legislatures when applying this rational basis test – therefore, bill opponents will have a formidable challenge in attempting to judicially invalidate the bill.