Wisconsin Education Association Council et al v. Walker, Scott et al

Filing 1

COMPLAINT for Declaratory and Injunctive Relief against Gregory L. Gracz, Michael Huebsch, Judith Neumann, Rodney G. Pasch, James R. Scott, Scott Walker. (Filing Fee $350, receipt number 0758-782830) filed by AFT-Wisconsin, AFL-CIO, AFSCME, District Council 48, AFL-CIO, Wisconsin Council of County and Municipal Employees, AFSCME, District Council 40, AFL-CIO, Wisconsin State Employees Union, AFSCME, District Council 24, AFL-CIO, SEIU Healthcare Wisconsin, CTW, CLC, Wisconsin Education Association Council, Wisconsin State AFL-CIO. (Hawks, Timothy) (Additional attachment(s) added on 6/15/2011: # 1 JS-44 Civil Cover Sheet) (mmo).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN

WISCONSIN EDUCATION ASSOCIATION
COUNCIL; WISCONSIN STATE
EMPLOYEES UNION, AFSCME DISTRICT
COUNCIL 24, AFL-CIO; WISCONSIN
COUNCIL OF COUNTY AND MUNICIPAL
EMPLOYEES, AFSCME DISTRICT
COUNCIL 40, AFL-CIO; AFSCME DISTRICT
COUNCIL 48, AFL-CIO; AFT-WISCONSIN,
AFL-CIO; SEIU HEALTHCARE WISCONSIN,
CTW, CLC; and WISCONSIN STATE AFLCIO,
Plaintiffs,

Case No. ___________

v.
SCOTT WALKER, Governor of the State of
Wisconsin; MICHAEL HUEBSCH, Secretary,
Department of Administration; GREGORY L.
GRACZ, Director, Office of State Employee
Relations; JAMES R. SCOTT, Chair,
Wisconsin Employment Relations
Commission; JUDITH NEUMANN, Member,
Wisconsin Employment Relations
Commission; RODNEY G. PASCH, Member,
Wisconsin Employment Relations
Commission,
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
_____________________________________________________________________________

I. NATURE OF THE ACTION
1.

At the request of Wisconsin Governor Scott Walker, a Defendant in this

action, the Wisconsin Legislature enacted legislation commonly known as the “Budget
Repair Bill” and officially titled “2011 Wisconsin Act 10” (the “Act”). Although the
stated purpose of the Act is to address the state’s projected budget deficit during a
temporary economic downturn, the vast majority of the Act’s provisions operate to
achieve three permanent and fundamental changes to Wisconsin’s decades-old system
of labor relations in the public sector. The first is to eliminate or reduce to a shell the
existing collective bargaining rights of a disfavored class of state and municipal
workers, while maintaining the robust bargaining rights of a favored class consisting of
those employees falling within a newly-created category deemed “public safety”
employees. The favored class consists of certain fire fighters and certain law
enforcement officers, whereas the disfavored class consists of all other public workers
who had been covered by Wisconsin’s collective bargaining laws. The second
permanent and fundamental change is to make it prohibitively difficult for the
disfavored class of employees, and only the disfavored class, to retain a union as their
bargaining representative. The third change is to weaken the ability of employees in the
disfavored class, and only the disfavored class, to support financially their unions’
activities, including, importantly, their First Amendment-protected political speech
activities.
2.

The distinctions between the two classes of employees bear no rational

relationship to the stated budgetary objectives of the Act or to any other legitimate State

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purpose, and the Act’s labor relations provisions therefore violate the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution and must be
enjoined and declared invalid.
3.

The provision of the Act that denies the disfavored class of employees,

and only that class, the ability to finance their unions’ free speech and associational
activities through the mechanism of dues deduction is unconstitutional for the
additional reason that it makes an impermissible speaker-based and viewpoint-based
distinction between similarly-situated employees and employee organizations and
therefore violates the First and Fourteenth Amendments of the United States
Constitution.
4.

Confirming the invalidity of the distinctions the Act makes between

“public safety” and other employees is that those distinctions, while lacking a
discernable connection to any legitimate governmental objective, bear a remarkably
close connection to the illegitimate objective of punishing the political opponents and
rewarding the political supporters of the Governor. That is because all of the unions and
employee associations that supported the election of the Governor are classified by the
Act as favored “public safety” employees—a classification created for the first time in
the Act and corresponding to no prior demarcation of different classes of public
employees—and none of those unions or associations are in the disfavored class.
5.

This action is brought pursuant to 42 U.S.C. §1983 by labor organization

plaintiffs who are the collective bargaining representatives of State and municipal

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employees suing on their own behalf and on behalf of their members, who are public
employees adversely affected by the Act.
6.

Plaintiffs seek declaratory and injunctive relief, pursuant to 28 U.S.C.

§§2201, 2202, Fed. R. Civ. P. 57 and 65, and the Court’s equitable powers, and attorneys’
fees, pursuant to 42 U.S.C. §1988.
II. JURISDICTION AND VENUE
7.

Because this case arises under 42 U.S.C. §1983, this Court has federal

question jurisdiction under 28 U.S.C. §1331 as well as under 28 U.S.C. §1343(a)(3),
which provides federal courts with jurisdiction to redress federal civil rights violations.
8.

Venue is proper in this Court under 28 U.S.C. §1391(b).
III. PARTIES

9.

The Wisconsin Education Association Council (WEAC) is a statewide

organization affiliated with the National Education Association and is headquartered in
Madison, Wisconsin. WEAC is a labor organization within the meaning of the
Wisconsin Municipal Employment Relations Act (MERA), Wis. Stat. §111.70(1)(h), and
the State Employment Labor Relations Act (SELRA), Wis. Stat. §111.81(12), and it
provides services to approximately 86,000 actively employed teachers and education
support professionals, including employees classified as “general” employees under
Act 10. The employees whom WEAC represents belong to 625 local unions which are
parties to 730 collective bargaining agreements with school districts, technical colleges,
and the State of Wisconsin. WEAC sues on behalf of its members and its local affiliates,
as well as on its own behalf.

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10.

WEAC’s members will be adversely affected in many ways if the Act is

permitted to take effect, including through the loss of the legal protection they currently
have under Wisconsin law against unilateral changes by their employers to their terms
and conditions of employment. WEAC’s affiliates and WEAC will be adversely affected
in many ways as institutions if the Act is permitted to take effect, including through the
loss of bargaining rights currently possessed by WEAC’s affiliates and through the loss
of revenues to WEAC and its affiliates derived from membership dues and nonmember
fair-share fees.
11.

Plaintiff Wisconsin State Employees Union, AFSCME District Council 24,

AFL-CIO (Council 24) is a labor organization within the meaning of SELRA, Wis. Stat.
§111.81(12). Council 24 represents approximately 24,000 employees of the State of
Wisconsin, including employees classified as “general” employees under the Act such
as correction officers, and University of Wisconsin Hospitals and Clinics Board (UW
Hospitals Board) employees. Council 24 sues on behalf of its members and on its own
behalf.
12.

Council 24’s members will be adversely affected in many ways if the Act

is permitted to take effect, including through the loss of the legal protection they
currently have under Wisconsin law against unilateral changes by their employers to
their terms and conditions of employment. Council 24 will be adversely affected in
many ways as an institution if the Act is permitted to take effect, including through the
loss of the bargaining rights that it currently possesses and through the loss of revenues
to Council 24 derived from membership dues and nonmember fair-share fees.

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13.

Plaintiff Wisconsin Council of County and Municipal Employees,

AFSCME District Council 40, AFL-CIO (District Council 40), is a labor organization
within the meaning of MERA, Wis. Stat. §111.70(1)(h). District Council 40 represents
approximately 33,200 municipal employees in 577 bargaining units in cities, counties
and other municipalities in all of Wisconsin’s counties except Milwaukee County,
substantially all of whom are classified as “general” employees under the Act. District
Council 40 sues on behalf of its members and on its own behalf.
14.

District Council 40’s members will be adversely affected in many ways if

the Act is permitted to take effect, including through the loss of the legal protection they
currently have under Wisconsin law against unilateral changes by their employers to
their terms and conditions of employment. District Council 40 will be adversely affected
in many ways as an institution if the Act is permitted to take effect, including through
the loss of the bargaining rights that it currently possesses and through the loss of
revenues to District Council 40 derived from membership dues and nonmember fairshare fees.
15.

Plaintiff AFSCME District Council 48, AFL-CIO (District Council 48) is a

labor organization within the meaning of MERA, Wis. Stat. §111.70(1)(h). District
Council 48 represents approximately 8,065 municipal employees in Milwaukee County,
Wisconsin, including employees classified as “general” employees under the Act.
District Council 48 sues on behalf of its members and on its own behalf.
16.

District Council 48’s members will be adversely affected in many ways if

the Act is permitted to take effect, including through the loss of the legal protection they

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currently have under Wisconsin law against unilateral changes by their employers to
their terms and conditions of employment. District Council 48 will be adversely affected
in many ways as an institution if the Act is permitted to take effect, including through
the loss of the bargaining rights that it currently possesses and through the loss of
revenues to District Council 48 derived from membership dues and nonmember fairshare fees.
17.

Plaintiff AFT-Wisconsin, AFL-CIO (AFT-W) is a labor organization within

the meaning of MERA, Wis. Stat. §111.70(1)(h), SELRA, §111.81(12) and the UW System
Faculty and Academic Staff Labor Relations Act (FASLRA), §111.96(13). AFT-W
represents approximately 11,032 employees of the State of Wisconsin, including but not
limited to professional and science employees, physicians and dentists, assistant public
defenders, UW teaching assistants, and graduate assistants; AFT-W also represents
7,734 municipal employees throughout Wisconsin, including but not limited to public
education employees in school districts and technical colleges. All of the foregoing are
classified as “general” employees under the Act. In addition, AFT-W represents
approximately 1,330 UW faculty and academic staff under FASLRA; and approximately
200 professional and science employees of the UW Hospitals and Clinics Authority
(UW Hospitals Authority) under the Wisconsin Employment Peace Act (WEPA), Wis.
Stat. §111.01, et seq. AFT-W sues on behalf of its members and its local affiliates, as well
as on its own behalf.
18.

AFT-W’s members will be adversely affected in many ways if the Act is

permitted to take effect, including through the loss of the legal protection they currently

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have under Wisconsin law against unilateral changes by their employers to their terms
and conditions of employment. AFT-W’s affiliates and AFT-W will be adversely
affected in many ways as institutions if the Act is permitted to take effect, including
through the loss of bargaining rights currently possessed by AFT-W’s affiliates and
through the loss of revenues to AFT-W and its affiliates derived from membership dues
and nonmember fair-share fees.
19.

Plaintiff SEIU Healthcare Wisconsin, CTW, CLC (SEIU Healthcare WI) is a

labor organization within the meaning of Wis. Stat. §§111.70(1)(h) and 111.81(12). SEIU
Healthcare WI represents approximately 1,100 health care workers employed by the
State of Wisconsin under SELRA; and approximately 600 health care workers employed
by nine local governments throughout Wisconsin under MERA. All of the foregoing are
classified as “general” employees under the Act. In addition, SEIU Healthcare WI
represents approximately 2,000 health care professionals employed by the UW
Hospitals Authority under WEPA. SEIU Healthcare WI also represents approximately
5,000 home care providers authorized to bargain with Wisconsin’s Department of
Health Services under SELRA, Wis. Stat. §§111.815(1) and 111.825(2g).
20.

SEIU Healthcare WI’s members will be adversely affected in many ways if

the Act is permitted to take effect, including through the loss of the legal protection they
currently have under Wisconsin law against unilateral changes by their employers to
their terms and conditions of employment. SEIU Healthcare WI will be adversely
affected in many ways as an institution if the Act is permitted to take effect, including
through the loss of the bargaining rights that it currently possesses and through the loss

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of revenues to SEIU Healthcare WI derived from membership dues and nonmember
fair-share fees.
21.

Plaintiff Wisconsin State AFL-CIO is a federation of labor organizations

which represent more than 200,000 employees throughout the State of Wisconsin. In
2010, its affiliates represented 101,147 employees in the public sector, including
employees classified as “general” employees under the Act. The Wisconsin State AFLCIO sues on behalf of its members, who will be adversely affected in many ways if the
Act is permitted to take effect, including through the loss of the legal protection they
currently have under Wisconsin law against unilateral changes by their employers to
their terms and conditions of employment.
22.

Plaintiffs WEAC, AFSCME District Councils 24, 40 and 48, AFT-W, SEIU

Healthcare WI and Wisconsin State AFL-CIO (collectively Plaintiff Labor
Organizations) have standing to sue on behalf of their members under the doctrine of
associational standing. Associational standing exists because (i) members of the
respective labor organizations would have standing to sue in their own right to redress
the injuries they will suffer if the Act were permitted to take effect, including the loss of
legal protection against unilateral employer changes to the terms and conditions of their
employment and the loss of their right to pay their dues and thereby support their
unions’ respective political programs through payroll deduction; (ii) the objectives of
this lawsuit are germane to the objectives of the Plaintiff Labor Organizations; and (iii)
the participation of individual members in this lawsuit is not necessary to accord the
relief sought.

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23.

Defendant Scott Walker is the Governor of Wisconsin. The Governor is

obligated to “transact all necessary business with the officers of the government,” and
“take care that the laws be faithfully executed.” Wis. Const. Art. V, Sec. 4. In his
capacity as Governor, Defendant Walker is the decision maker with respect to certain
issues pertaining to the wages, hours and other conditions of employment of state
employees, including issues pertaining to whether the State, in its capacity as employer,
should increase, freeze or decrease, or attempt to increase, freeze or decrease wages,
benefits and other costs of compensating state employees. But for Act 10, the
Governor’s power to alter or reduce wages, hours and other conditions of employment
would be constrained by SELRA, and his power remains constrained by SELRA with
respect to “public safety employees.”
24.

Enjoining the Governor will be necessary in order for this Court to grant

full relief in the event that Act 10 is invalidated, so that the Governor will be subject to
the constraints of SELRA with respect to “general” employees as well as with respect to
“public safety” employees. Governor Walker is also responsible for enforcement of the
Act and for ensuring compliance by Wisconsin Executive Branch officials with the
federal constitutional limits on their authority to implement the provisions of the Act.
Defendant Walker is sued in his official capacity. Defendant Walker has his office at the
Office of the Governor, State Capitol, 115 East, Madison, Dane County, Wisconsin,
within this District.
25.

Defendant Michael Huebsch is the Secretary of the Department of

Administration (DOA), which is responsible for, inter alia, administering payroll

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deduction of union dues and fair-share fees. Defendant Huebsch and DOA will be
responsible for implementing and administering the provisions of Act 10 that affect,
inter alia, those subjects. Defendant Huebsch is sued in his official capacity. Defendant
Huebsch has his office at the Department of Administration, 101 E. Wilson St. Madison,
Wisconsin 53703, within this District.
26.

Defendant Gregory L. Gracz is the director of the Office of State

Employment Relations (OSER) which, pursuant to SELRA, is responsible for:
negotiating and administering collective bargaining agreements with all collective
bargaining units of state employees, except for home care providers; the employer
functions of the executive branch and coordinating collective bargaining activities with
operating state agencies on matters of agency concern; and representing the state in its
responsibility as an employer with regard to certain collective bargaining units. Among
his statutory responsibilities are to “establish and maintain, wherever practicable,
consistent employment relations policies and practices throughout the state service.”
Wis. Stat. §111.815.
27.

Defendant Gracz and OSER will be responsible for implementing and

administering the collective bargaining provisions of Act 10 as they relate to State
employees, both general and “public safety,” including the differential treatment of the
scope of collective bargaining, dues deductions and fair-share prohibitions. Defendant
Gracz is sued in his official capacity. Defendant Gracz has his office at the Office of State
Employment Relations, 101 East Wilson Street, 4th Floor, Madison, Dane County,
Wisconsin, within this District.

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28.

Defendant James R. Scott is the chair of the Wisconsin Employment

Relations Commission (WERC), which is responsible for implementing, enforcing,
administering and resolving disputes arising under WEPA, MERA, SELRA and
FASLRA, including but not limited to: the prevention of prohibited or unfair labor
practices by employers; resolving by declaratory ruling, mediating, arbitrating and factfinding labor disputes; conducting representation elections and certifying duly-elected
collective bargaining representatives; authorizing by referendum fair-share and
maintenance of membership agreements. Wis. Stat. §§111.07-.14, 111.70(4), 111.825(4)(6), 111.83, 111.84(4), 111.85-.88, 111.990, 111.991(4)-.995, 111.9993.
29.

The Commission will be responsible for interpreting and implementing

the collective bargaining provisions and prohibitions of the Act, including the
differential treatment of municipal and state general and “public safety” employees, the
dues deduction and fair-share prohibitions, as well as the annual re-certification
elections. Defendant Scott is sued in his official capacity. Defendant Scott has his office
at the WERC, 1457 East Washington Avenue, Madison, Dane County, Wisconsin, within
this District.
30.

Defendant Judith Neumann is a commissioner on the WERC, which has

the responsibilities and functions set out above. Defendant Neumann is sued in her
official capacity. Defendant Neumann has her office at the WERC, 1457 East
Washington Avenue, Madison, Dane County, Wisconsin, within this District.
31.

Defendant Rodney G. Pasch is a commissioner on the WERC, which has

the responsibilities and functions set out above. Defendant Pasch is sued in his official

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capacity. Defendant Pasch has his office at the WERC, 1457 East Washington Avenue,
Madison, Dane County, Wisconsin, within this District.
IV. FACTS
Background
32.

2011 Wis. Act 10, enacted on March 11, 2011, and until recently enjoined

by a state court from being published or implemented, significantly amends and repeals
portions of Chapter 111, governing Wisconsin employment relations law.
33.

Subchapter I, Wis. Stat. §111.01 et seq., known as the Wisconsin

Employment Peace Act (WEPA), governs employment relations and collective
bargaining for certain employees, including childcare workers and UW Hospitals
Authority employees.
34.

Subchapter IV, Wis. Stat. §111.70 et seq., the Municipal Employment

Relations Act (MERA), governs employment relations and collective bargaining of
municipal employers and representatives of municipal employees. MERA’s provisions
were first enacted in 1959.
35.

Subchapter V, Wis. Stat. §111.80 et seq., the State Employment Labor

Relations Act (SELRA), governs employment relations and collective bargaining of State
employers and representatives of certain, defined State employees. SELRA was first
enacted in 1965.
36.

Subchapter VI, Wis. Stat. §111.95 et seq., the University of Wisconsin

System Faculty and Academic Staff Labor Relations Act (FASLRA), enacted in 2009,

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governs employment relations and collective bargaining of the UW System and
representatives of faculty and academic staff.
37.

Municipal employers under MERA are cities, counties, villages, towns,

metropolitan sewerage districts, school districts, long-term care districts, transit
authorities, and other political subdivisions of the State. Wis. Stat. §111.70(1)(j).
38.

To effectuate its provisions regarding collective bargaining and other

aspects of labor relations, the Act creates a distinction between classes of public
employees that never had been drawn under prior law.
39.

In particular, the Act creates the class of “public safety” employees, who

are covered by either MERA or SELRA, and for whom full collective bargaining and
union associational rights are preserved; and the class of “general” employees for
whom collective bargaining and union speech and associational rights are severely
impaired. (2011 Wis. Act 10 Secs. 214, 216, 268, 272)
40.

To identify “public safety” employees, Act 10 picks and chooses certain

protective service employees, while omitting others, who are classified as “protective
occupation” participants under the Wisconsin Retirement System (WRS) and whose
principal duties “involve active law enforcement or active fire suppression or
prevention” exposing the employee “to a high degree of danger or peril” and
“requiring a high degree of physical conditioning.” Wis. Stat. §§40.02(48)(a), (am). (Secs.
216, 272)
41.

Act 10 identifies as “public safety” employees only the following

classifications within the WRS definition of protectives: for purposes of MERA, only

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police officers, fire fighters, deputy sheriffs, county traffic police officers, and village
police officer-fire fighters, (Sec. 216) Wis. Stat. §§40.02(48)(am)9., 10., 13., 15., 22.; for
purposes of SELRA, only state troopers and state motor vehicle inspectors in the State
Patrol, (Sec. 272) Wis. Stat. §§40.02(48)(am)7., 8..
42.

Act 10 excludes from its new “public safety” category those employees

within the following WRS protective classifications: UW Police, Wisconsin Capitol
Police, conservation wardens, state probation and parole officers, special criminal
investigation agents of the Wisconsin Department of Justice and more than sixteen
other job classifications. See Wis. Stat. §§40.02(48)(a), (am). Officers in the UW Police and
the Capitol Police are “police officers” for purposes of Wis. Stat. §40.02(48)(am)9.
Certain State employees, including but not limited to fire-crash rescue specialists at
state-operated airfields, are “fire fighters” for purposes of Wis. Stat. §40.02(48)(am)10.
Under the Act, “police officer” and “fire fighters” are, however, excluded from SELRA’s
definition of “public safety” employees.
43.

The Act classifies as “general” employees all public employees who are

not “public safety” employees and who were formerly within the purview of MERA
and SELRA. (Secs. 214, 268)
The Act Eliminates Coverage and Extinguishes Collective Bargaining
for Certain Employees
44.

The Act eliminates coverage and extinguishes collective bargaining rights

for certain employees of the UW Hospitals Authority and UW Hospitals Board, UW
System faculty and academic staff, home care providers and child care providers. (Secs.

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186-197, removing UW Hospitals Authority employees and child care providers from
WEPA; 265, 269, 279, 281, 282, 283, 287, 291, 292, 304, 307, 313, 316, 317, 318, removing
UW Hospitals Board employees and home care providers from SELRA; 323, repealing
FASLRA)
The Act Bans Virtually All Collective Bargaining Rights for “General Employees”
While Preserving Collective Bargaining Rights for “Public Safety” Employees
45.

Prior to the Act, municipal and state employers had a duty to bargain in

good faith, with the intention of reaching an agreement, regarding wages, hours, and
conditions of employment. §§111.70(1)(a), 111.70((3)(a)4., 111.81(1), 111.84(1)(d). The
breadth of subjects within this scope of bargaining included hours of work, safety
conditions and other conditions of employment, vacation, holidays, health insurance,
retirement, subcontracting, standards for discipline, layoff procedures, and grievance
and arbitration procedures.
46.

With respect to “general” employees, but not “public safety” employees,

Act 10 permits state and municipal employers to bargain only over “total base wages,”
which excludes overtime, premium pay, merit pay, performance pay, supplemental
pay, pay schedules and pay progressions. (Secs. 169, 186, 188-189, 194-199, 210, 221, 229,
233, 236, 238-239, 245, 262, 265, 269, 279, 281-283, 287, 291-292, 303-310, 313, 314, 323,
359, 367-368)
47.

The Act defines total base wages as limited to the amount of any increase

or decrease in the consumer price index, unless approved by a referendum. (Secs. 168,
245, 314, 327)

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48.

Collective bargaining over any other “factor or condition of employment”

is prohibited in the case of general employees, but not “public safety” employees. (Secs.
210, 245, 262, 314)
49.

The Act eliminates interest arbitration as a means for resolving impasse

for municipal “general” but not “public safety” employees, while maintaining
longstanding restrictions against strikes as to both classes of employees. (Sec. 237)
§§111.70(4)(L), 111.77, 111.89. Consequently, municipal employers will be free to
implement their final offers when impasse is reached and thereby retain ultimate
control even in the single remaining subject on which the employer may bargain—
“total base wages”—as to general employees, but not “public safety” employees.
Terms of Contracts Limited to One Year for General Employees
but Not “Public Safety” Employees
50.

Prior to the Act, municipal employers were obligated to bargain over

proposed two-year collective bargaining agreements, although school-district contracts
could extend up to four years, and all others up to three years. §§111.70(3)(a)4,
111.70(4)(cm)8m. State employees were permitted to negotiate contracts that coincided
with the fiscal year or biennium. §111.92(3).
51.

The Act limits to one year’s duration all collective bargaining agreements

for state and municipal general employees but not for “public safety” employees. (Secs.
221, 238, 319, 320)

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Annual Re-certification Election Required for Labor Organizations
Representing General Employees, but Not “Public Safety” Employees
52.

Prior to the Act, a bargaining representative could be decertified where (i)

the employer, one or more bargaining unit employees or another labor organization
petitioned for a WERC-certified election; (ii) the petition was supported by a “showing
of interest” in decertification by at least 30 percent of the represented employees or, in
the case of an employer petition, “objective considerations” providing reasonable cause
that the bargaining representative no longer enjoyed majority support; and (iii) the
union failed to secure the votes of a majority of those voting in such an election.
§§111.70(3)(a)(4), 111.70(4)(d), 111.83; Wis. Admin. Code §§ERC 11.02(3), 21.02.
53.

In contrast, the Act requires unions representing general employees, but

not those representing “public safety” employees, to undergo annual automatic WERCsupervised re-certification elections to retain their status as the certified bargaining
representatives, regardless whether any represented employee actually seeks a vote.
(Secs. 242, 289, 9132, 9155) And a general union subject to a re-certification election
under the Act, but not a “public safety” union, is decertified unless at least 51 percent of
those eligible to vote cast their ballots in favor of retaining the union. (Secs. 242, 289,
9132, 9155)
54.

Absent 100 percent voter participation, then, a union representing general

employees can retain its certified bargaining status only by winning a supermajority
vote, whereas a union representing “public safety” employees is not subject to such a
condition on retaining its status. For example, with 70 percent voter turnout and a 70

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percent vote in favor of the union, the union still would lose under this antidemocratic
rule by capturing “only” 49 percent of the eligible vote.
Public Employers Prohibited From Deducting Labor Organization Dues
for General Employees but Not “Public Safety” Employees
55.

For decades, state and municipal employers and unions have been

permitted to negotiate provisions for the deduction of employees’ labor organization
membership dues. §§111.70(3)(a)6, 111.84(1)(f). Unions may lawfully spend, and the
union plaintiffs here regularly do spend, union membership dues on both
“representational” activities—meaning negotiation with the employer and
administration of the contract (e.g., grievance handling)—and on non-representational
activities, including First Amendment-protected political speech and advocacy such as
get-out-the-vote campaigns in elections for public office or ballot measures, union-tomember communications expressing the union’s endorsement of political candidacies
or ballot measures, and union communications to the public expressing the union’s
view on issues and causes of public concern.
56.

The Act prohibits State and municipal employers from deducting union

dues for general employees, including for general employees who desire the deductions
and present their employers with written authorizations. (Secs. 58, 227, 298)
57.

The Act, however, permits unions representing “public safety” employees

to negotiate provisions for deduction of labor organization dues, and the State is not
barred from honoring written requests to deduct union dues of a “public safety”
employee. (Secs. 58, 223, 227, 295, 298)

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Public Employers Prohibited From Entering into Fair-Share Agreements for
General Employees but Not “Public Safety” Employees
58.

Employees represented by a union are not required to join the union, pay

membership dues to the union or otherwise support financially those aspects of a
union’s activities that are non-representational in nature, including activities
constituting advocacy on political or social issues. Prior to the Act, however, State and
municipal employers could negotiate fair-share agreements requiring “all or any of the
employees in the collective bargaining unit . . . to pay their proportionate share of the
cost of the collective bargaining process and contract administration” and “requiring
the employer to deduct the amount of dues as certified by the labor organization from
the earnings of the employees.” §§111.70(1)(f), (2), 111.85.
59.

The Act prohibits all State and municipal employers from entering into

fair-share agreements with unions that represent general employees, but not with those
unions that represent “public safety” employees. (Secs. 190-192, 198, 200, 203, 213, 217,
219, 225, 299)
Pension Contributions by General Employees
60.

Currently, contributions to the Wisconsin Retirement System (WRS) for

general employees, including teachers, are comprised of employer and employee
portions totaling 11.6 percent. Current law permits the employer to pay all or part of the
employee-required contribution. Wis. Stat. §§40.05(1)(a), (b).
61.

Act 10 requires general employees to contribute “an amount equal to one-

half of all actuarially required contributions” out of their paychecks: 5.8 percent for

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2011. The Act requires this same contribution from all “general” employees, including
those such as “police officers” and “fire fighters” covered by SELRA who are classified
as “protectives” by WRS, but not as “public safety employees” under the Act. (Secs. 67,
69-73, 75, 76)
62.

The Act forbids employers from covering any part of the general

employees’ portion. (Sec. 74)
63.

Under the Act, labor organizations of “public safety” employees, but not

those of “general” employees, may negotiate for their employers to pay the employee
portion of the contribution. (Sec. 74)
Health Insurance Contributions by State and Local Government Employees
Participating in the State Health Plan
64.

State employees receive health care coverage under plans offered by the

Group Insurance Board (State plans). Local government employers may also participate
in the State plans. Under prior law, the State and local government employers who
participated in the State health plans were required to contribute at least 80 percent of
“the average premium cost of plans offered in the tier with the lowest employee
premium cost” for full-time employees, and half that amount for part-time employees.
§40.05(4)(ag).
65.

The Act creates a cap on the employer contribution of not more than 88

percent of the average premium cost in the tier with the lowest employee premium cost.
State employees participating in the State health plans are required by the Act to

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contribute twelve percent of the premium for the respective tier of the plan for 2011.
(Secs. 77, 88, 9115)
66.

The 88 percent of health insurance premium to be paid by the State is the

maximum participating employers can pay under the law. There is no minimum
amount the employers are required to pay and, after 2011, the director of OSER
annually determines the amount the State will pay. (Secs. 77, 9115)
67.

Under the Act, local governmental employers participating in the State

plans cannot pay more than 88 percent of the average premium cost in the tier with the
lowest premium cost beginning in 2012. (Sec. 88)
68.

Because the Act prohibits bargaining on health insurance, health

insurance premiums for general municipal employees whose local governments do not
participate in the State plans will be determined unilaterally by the employer under the
Act. (Sec. 88, 245)
69.

Under the Act, labor organizations representing “public safety”

employees retain the right to bargain regarding health insurance, including the amount
of premium contribution. (Sec. 77, 88, 210, 246, 303).
Legislative History of 2011 Wisconsin Act 10
70.

On February 11, 2011, newly-inaugurated Governor Walker issued

Executive Order #14 ordering the Legislature, already convened in a special session
pursuant to his Executive Order #1, to “consider and act upon legislation relating to the
Budget Repair Bill.”

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71.

Known as the Governor’s Budget Repair Bill, Act 10 was introduced by

the Senate and Assembly Committees on Organization as companion (identical) bills by
the request of the Governor and without sponsorship by any legislator. It was
introduced on February 14, 2011 in the Senate as Senate Bill 11 (SB 11) and the next day,
on February 15, in the Assembly as Assembly Bill 11 (AB 11), and immediately referred
to the Joint Committee on Finance.
72.

Also on February 14, the Legislative Fiscal Bureau reported to members of

the Legislature a summary of the fiscal effects of SB/AB 11, which it described as
“Budget Adjustment Legislation.”
73.

Prior to and during the week following introduction of SB 11, Governor

Walker issued several press releases and made public addresses to explain that the
budget repair bill was needed to balance the state budget and to give government the
tools to manage during economic crisis.
Governor Walker’s 2010 Gubernatorial Campaign
74.

The two largest “public safety” bargaining units under MERA are the

Milwaukee police officers, represented by the Milwaukee Police Association (MPA),
and the Milwaukee fire fighters, represented by Milwaukee Professional Fire Fighters,
Local 215 (Local 215). MPA and Local 215 endorsed Governor Walker’s campaign and
funded a television advertisement supporting him.
75.

Another union of police officers, the West Allis Professional Police

Association, also endorsed Governor Walker.

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76.

Wisconsin Law Enforcement Association (WLEA) is the bargaining

representative for troopers and inspectors in the Wisconsin State Patrol, and for many
other law enforcement personnel employed by the State. WLEA did not endorse a
candidate in the governor’s race; however, the lobbying group for the state troopers, the
Wisconsin Troopers Association (WTA), endorsed Governor Walker.
77.

The only protective service law enforcement constituencies of the WLEA

that the Act exempts from its provisions restricting collective bargaining rights are
those constituencies that are represented for lobbying purposes by the WTA—the entity
that endorsed Governor Walker. Conversely, police constituencies in WLEA who are
not represented by WTA, such as the Capitol Police, receive no exemption from those
provisions; they are placed in the disfavored “general” employee category even though
they are sworn law enforcement officers in the protective service.
78.

Notably, the Act’s official drafting records, maintained by the Legislative

Reference Bureau, include a note entitled, “Alternative Approach to Collective
Bargaining,” which states in relevant part:
o
79.

Carve out a new bargaining unit from WLEA for the State Troopers

The Wisconsin Sheriffs and Deputy Sheriffs Association PAC also

endorsed Governor Walker.
80.

Employees in all of the labor organizations that endorsed Governor

Walker have been classified under the Act as “public safety” employees, exempt from
the provisions that eliminate or restrict collective bargaining rights.

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VI. CLAIMS
Count 1: Equal Protection
81.

All paragraphs above are realleged as if set out fully herein.

82.

The Act creates classes of “public safety” employees and general

employees (all others), subjecting general employees to a panoply of burdens and
deprivations of rights, while exempting “public safety” employees from all of the
injurious provisions.
83.

The Act forbids general employees and their collective bargaining

representatives from bargaining collectively with their employers over all subjects
except for a newly-created, limited concept of “total base wages,” and exempts “public
safety” employees and their collective bargaining representatives from this prohibition.
84.

The Act forbids general employees from maintaining their certification

without undergoing annual re-certification elections, and exempts “public safety”
employees and their unions from this requirement.
85.

The Act forbids public employers and the collective bargaining

representatives of general employees from entering into collective bargaining
agreements of longer than one-year’s duration, and exempts “public safety” employees
and their collective bargaining representatives from this prohibition.
86.

Further, the Act forbids public employers from collecting union dues from

general employees while exempting the employers of “public safety” employees from
this prohibition.

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87.

The Act also forbids public employers from entering into fair-share

agreements with general employees and their unions and exempts “public safety”
employees from this prohibition.
88.

The Act’s classifications of general employees and “public safety”

employees and their differential treatment have no rational relation to budget repair or
any other legitimate government interest. Consequently, the Act’s differential treatment
of public employees violates the equal protection guarantee of the Fourteenth
Amendment of the United States Constitution.
89.

The distinctions the Act makes between “public safety” and other

employees not only lack any rational connection to a legitimate governmental objective,
they bear a remarkably close connection to the illegitimate objective of punishing the
political opponents and rewarding the political supporters of the Governor. That is
because all of the unions and employee associations that supported the election of the
Governor are classified by the Act as favored “public safety” employees and none of
those unions or associations are in the disfavored class.
90.

The Equal Protection Clause forbids legislation that creates classifications

either for the purpose of disadvantaging groups that are out of political favor or for the
purpose of bestowing rank political favors to the supporters of those in power, because
those purposes are not legitimate governmental objectives.
Count 2: First Amendment
91.

All paragraphs above are realleged as if set out fully herein.

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92.

As set out above, unions may lawfully expend membership dues, and all

of the plaintiff unions here do expend such union dues, on political advocacy and other
forms of expression protected by the First Amendment of the United States
Constitution. Where a union is able to secure an agreement with the employer to permit
the union to collect dues on behalf of members who authorize payroll deduction or
dues check-off, such an agreement facilitates the union’s ability to finance its lawful and
protected political advocacy and speech.
93.

The Act, by adopting a speaker-based and viewpoint-based classification

to distinguish between those unions who may secure dues check-off arrangements and
those who may not do so, violates the First Amendment as well as the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution.
REQUEST FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this Court:
A.

Enter a declaratory judgment that the provisions of the Act referenced in

paragraphs [83-87] violate the rights of plaintiffs to equal protection under the laws in
contravention of the Fourteenth Amendment of the United States Constitution, and that
the provision of the Act referenced in paragraph [86] violates the rights of freedom of
speech and association protected by the First and Fourteenth Amendments of the
United States Constitution;

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B.

Enter preliminary and permanent orders enjoining defendants, their

successors, and all those acting in concert with them or at their direction from
implementing or enforcing provisions of the Act referenced in paragraphs [82-87];
C.

Award plaintiffs’ attorneys’ fees and costs, pursuant to 42 U.S.C. §1988;

D.

Grant such other and further relief as may be necessary to preserve or

and

restore the status quo ante.
June 15, 2011.

Respectfully submitted,

Kurt C. Kobelt, WBN 1019317
Attorney for WEAC
Wisconsin Education Ass’n Council
PO Box 8003
Madison, WI 53708-8003
Telephone [phone]
Fax [phone]
[e-mail]

s/ Timothy E. Hawks
Timothy E. Hawks, WBN 1005646
Attorney for AFT-Wisconsin
Hawks Quindel, S.C.
PO Box 442
Milwaukee, WI 53201-0442
Telephone [phone]
Fax [phone]
[e-mail]

Alice O'Brien, General Counsel*
Jason Walta, Staff Counsel
National Education Association
1201 16th Street NW
Washington DC 20036
Telephone [phone]
[e-mail]

Peggy A. Lautenschlager, WBN 1002188
Attorney for AFSCME Council 24
Bauer & Bach, LLC
123 East Main Street, Suite 300
Madison, WI 53703-3360
Telephone [phone]
Fax [phone]
[e-mail]

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Aaron N. Halstead, WBN 1001507
Attorney for AFSCME Council 40
Hawks Quindel, S.C.
PO Box 2155
Madison, WI 53701-2155
Telephone [phone]
Fax [phone]
[e-mail]

Mark A. Sweet, WBN 1024320
Attorney for AFSCME Council 48
Sweet and Associates, LLC
2510 East Capitol Drive
Milwaukee, WI 53217-5231
Telephone [phone]
Fax [phone]
[e-mail]

Barbara Zack Quindel, WBN 1009431
Attorney for SEIU Healthcare WI
Hawks Quindel, S.C.
P O Box 442
Milwaukee, WI 53201-0442
Telephone [phone]
Fax [phone]
[e-mail]

Marianne Goldstein Robbins, WBN 1015168
Attorney for Wisconsin State AFL-CIO
Previant, Goldberg, Uelman, Gratz,
Miller & Brueggeman, S.C.
PO Box 12993
Milwaukee, WI 53212-0993
Telephone [phone]
Fax [phone]
[e-mail]

Jeremiah A. Collins*
John M. West*
Leon Dayan*
Attorneys for all Plaintiffs
Bredhoff & Kaiser, P.L.L.C.
805 Fifteenth Street, NW
Washington, DC 20005-2207
Telephone [phone]
Fax [phone]
[e-mail]

John C. Dempsey, General Counsel*
AFSCME
1101 17th Street, NW
Washington, DC 20036
Telephone [phone]
Fax [phone]
[e-mail]

*Pro hac vice applications pending

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