Wisconsin labor unions file lawsuit over Act 10, saying it violates free speech

Milwaukee Journal Sentinel

Two Wisconsin chapters of a labor union have filed a federal lawsuit seeking to invalidate Act 10, the signature piece of legislation from Gov. Scott Walker.

The lawsuit, filed by the Operating Engineers of Wisconsin Local 139 and Local 420, argues that Act 10 violates free speech and free association under the First Amendment.

Act 10 was a budget bill proposed by Walker as a remedy to a projected multibillion- dollar deficit. The bill, passed by the Legislature in 2011, dramatically curtailed collective bargaining for most public employees, including teachers.

The unions say in the filing that Act 10 "has caused and continues to cause irreparable injury to the unions." Locals 139 and 420 together represent more than 10,000 workers in Wisconsin.

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The lawsuit was filed in Milwaukee against Walker, Attorney General Brad Schimel and James J. Daley, chairman of the Wisconsin Employment Relations Commission.

The filing is on the heels of a case to be heard at the U.S. Supreme Court, Janus v. American Federation of State, County, and Municipal Employees, that is trying to overturn a previous decision, from Abood v. Detroit Board of Education. The Abood case held that all employees covered by a union contract must pay union dues but those funds cannot be used for political purposes.

The Wisconsin unions argue that "if Janus overrules Abood, all Union speech directed to the government will be considered inherently political in nature, indistinguishable from lobbying the government."

The idea is that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all," the lawsuit says.

Mark Sweet, an attorney for Local 420, said overturning Abood ruling could open the doors for this lawsuit.

"Act 10 was a bad idea when it was passed," Sweet said Saturday. A ruling by the Supreme Court to overturn Abood would make Act 10 unconstitutional, too, he said. This lawsuit, Sweet said, is looking for legal consistency.

"We're not going to wait," he said.

The filing argues that Act 10 is "a content-based restriction infringing on (the unions') rights to free speech under the First Amendment to the U.S. Constitution." It says the law infringes upon association rights "to organize as a collective bargaining unit by increasing costs and penalties through its recertification and fair share provisions."

Under Act 10, public-sector unions must win, every year, support from a majority of employees in the bargaining unit, not just a majority of those voting in the certification election.

"Act 10 is constitutional and it will be upheld as it has been in the past, regardless of the outcome in Janus," Walker spokesman Tom Evenson said.

Local 139 comprises people who perform construction, maintenance and repair work for public employers within Wisconsin. It's headquartered in Pewaukee with other offices in Madison, Altoona and Appleton. Engineers in Local 420 operate and maintain physical plant systems and buildings in the state for public utilities and schools. Local 420 has offices in Green Bay and Oak Creek.