The Wisconsin Supreme Court ended the three-year legal fight against Gov. Scott Walker’s Act 10 in a 5-2 decision Thursday, a provision that effectively ends the collective bargaining ability of almost all public sector unions.
After Walker signed the bill into law in 2011, amidst massive protests at the state Capitol and recall elections around the state, several unions sued the state. The High Court sided with Walker Thursday.
“No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation,” Justice Michael Gableman wrote in the majority opinion.
Justice Ann Walsh Bradley, in the dissent, accused her colleagues of ignoring important questions in the case.
“The right to freedom of association is diluted as the majority has opened the door for the State to withhold benefits and punish individuals based on their membership in disfavored groups,” Bradley wrote.
Thursday’s decision is the latest blow in a series of restrictions placed on public sector employee unions in recent years.
In June, the U.S. Supreme Court also curbed the power of some public sector unions when it barred them from collecting dues from the non-member employees they represent. Before the decision, any union could require the employees it represented to pay “agency fees” regardless of whether or not they were members of the union.
That decision was narrow in scope, only applying to some healthcare worker unions like the one involved in the case before the court.
Right-to-work movements and efforts to curb collective bargaining powers in the public sector are the result of a perfect political storm that has been a long time brewing, according to University of Wisconsin-Madison Political Science Professor John Ahlquist.
Part of that storm is a recent trend in public opinion, since historically private sector workers were more likely to support public sector unions when they themselves were unionized, Ahlquist said. In the last three decades, however, private sector union membership has plummeted.
“Now you have a situation where most of the workers in the United States in the private sector do not have collective bargaining protections,” Ahlquist said. “And then they see people they believe are basically paid by their tax dollars seeming to have all kinds of rights and benefits and responsibilities that they no longer have on their job.”
Nationally, 35.3 percent of public sector workers are unionized, compared to only 6.7 percent of private sector workers, according to a January report from the Bureau of Labor Statistics.
Combined with a declining economy and major Republican victories in the legislature and governor’s office in 2010, this descent from public opinion ensured a bumpy decade for Wisconsin’s public sector unions and the employees they represent, Ahlquist said.
National public approval of unions hit an all-time low just five months after Walker signed Act 10, according to a Pew Research study.
“It certainly means that the public sector unions are in a much more vulnerable political position,” Ahlquist said. “They cannot necessarily rely on the good will of parents and other people in the community to support them because they’re teachers.”
If public sector unions are poised to go the way of their private-sector sisters, their decline is imminent. Overall, Wisconsin’s union membership rate fell to an all-time low of 11.2 percent in 2012, according to the same report.
Ahlquist predicted it would take an overhaul of the state government to alleviate the political challenges public sector unions face.
“I do not think you’re going to see a huge change in anything unless you see a full scale flip of the legislature and the governor’s office in the state,” Ahlquist said.
But the current political arena is much different than it was in 2010. The same poll found that in the last two years, public approval of unions has shot up. From 41 percent in 2011, now 51 percent say they have a favorable opinion of labor unions, the highest the poll found since 2006.
Many unions, like the Teaching Assistants’ Association at the University of Wisconsin-Madison, one of the first organizations to appear at the budget protests in 2011, continue their advocacy in whatever way they can in the face of legislation like Act 10.
When the TAA lost its legal rights to unionize in 2011, it changed tactics, promoting its causes with advocacy campaigns rather than direct bargaining, according to Co-President Eleni Schirmer.
“We are still able to make demands, we are still able to organize, and we are still able to behave diligently, even without the recognition of the state,” Schirmer said.
Recently, the organization completed its “Pay Us Back” campaign, an effort to win the first wage raise teaching assistants have seen since 2009 to offset rising segregated fees from the university, Schirmer said. They achieved a 4.5 percent raise with none of the legal status of a union.
“The legal conditions are of course fundamental, but our energy and momentum comes from our ability to organize ourselves,” Schirmer said. “That is not something that can be taken away.”
Lester Pines, attorney for Madison Teachers, Inc. in the case before the state Supreme Court, said he was disappointed but not surprised by Thursday’s decision. He added his client and other union organizations in the state are not going anywhere.
“The unions have had three years to organize their membership,” Pines said. “Anybody who thinks this is a death knell for municipal employee unions is wrong.”
