International Association of Machinists District 10 and Local Lodge 873 v. State of Wisconsin et al
Filing
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ORDER granting in part and denying in part 25 Motion for Judgment on the Pleadings; denying 2 Motion for Preliminary Injunction. Defendants' motion for judgment on the pleadings is GRANTED IN PART as to State of Wisconsin, Governor Scott Wal ker and the Department of Workforce Development, all of whom are DISMISSED. The motion is DENIED in all other respects. Plaintiffs may have until 7/22/2016 to file an amended complaint that names the Chairman of the Wisconsin Employment Relations Commission as an additional defendant in this case. Signed by District Judge William M. Conley on 7/12/2016. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
INTERNATIONAL ASSOCIATION OF MACHINISTS
DISTRICT 10 AND LOCAL LODGE 873,
Plaintiffs,
OPINION AND ORDER
v.
16-cv-77-wmc
STATE OF WISCONSIN, SCOTT WALKER,
DEPARTMENT OF WORKFORCE DEVELOPMENT,
AND RAY ALLEN,1
Defendants.
Plaintiffs International Association of Machinists District 10 (“District 10”) and
its Local Lodge 873 filed this lawsuit under 42 U.S.C. § 1983 and § 302(e) of the Labor
Relations Act, 29 U.S.C. § 186(c)(4), challenging a single provision of Wisconsin’s
recently enacted “Right to Work” law, 2015 Wisconsin Act 1. Specifically, plaintiffs
contend that the provision of the law making “dues check-off authorizations” revocable
upon 30 days’ notice by an employee, Wis. Stat. § 111.06(1)(i), is preempted by §
302(c)(4) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186(c).2
Plaintiffs have moved for a preliminary injunction to enjoin defendants from
applying Wis. Stat. § 111.06(1)(i) to any dues check-off authorization governed by the
Ray Allen, current secretary of the Department of Workforce Development, has been
substituted for the former secretary pursuant to Fed. R. Civ. P. 25.
1
There is an ongoing state court also challenging 2015 WI ACT 1, though on different grounds
than plaintiffs raise in this case. In Int’l Assoc. of Machinists Dist. 10 and its Local Lodge 1061, et al.
(Dane County Cir. Ct. Case No. 15CV628), the plaintiffs challenged the entirety of Act 1 as a
violation of the takings clause of the Wisconsin Constitution. The circuit court granted a motion
for summary judgment in favor of the plaintiffs on April 15, 2016, and enjoined the state, the
attorney general and the Wisconsin Employment Relations Commission from enforcing the
statute. The Wisconsin Court of Appeals lifted the stay, pending resolution of the state’s appeal,
on May 24, 2016. Int’l Assoc. of Machinists Dist. 10, et al. (2016AP820). That appeal is still
pending.
2
LMRA.
(Dkt. #2.)
For their part, defendants filed a motion for judgment on the
pleadings, arguing that the entire suit should be dismissed because (1) plaintiffs lack
standing to challenge the statute and (2) plaintiffs have failed to name a proper
defendant. (Dkt. #25.)
Defendants’ motion will be granted with respect to its arguments that the State of
Wisconsin, Governor Walker and the Department of Workforce Development (“DWD”)
should be dismissed as defendants.
The motion will be denied in all other respects,
however, because the court concludes that plaintiffs have standing to sue and that the
Secretary of the DWD is an appropriate defendant.
While their lawsuit may continue, plaintiffs’ motion for a preliminary injunction
will also be denied. Although plaintiffs have shown some likelihood of success on the
merits, they have failed to make any showing that they will suffer irreparable harm
absent an injunction. Ultimately, in order for plaintiffs to obtain the broad scope of
injunctive relief requested, they must also amend their complaint to add a claim against
the chairman of the Wisconsin Employment Relations Commission (“WERC”).
Accordingly, this case shall proceed with plaintiffs filing an amended complaint and then
with dispositive motions under the current schedule.
FACTS3
International Association of Machinists District 10 (“District 10”) is a labor
organization located in Milwaukee, Wisconsin, and is composed of approximately 30
lodges, including Local Lodge 873. Both District 10 and its lodges represent employees
The following facts are drawn from plaintiffs’ proposed statement of facts and defendants’
responses.
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for purposes of collective bargaining and are parties to numerous collective bargaining
agreements with various employers. Local 873 represents employees at the John Deere
plant in Horicon, Wisconsin, and is party to a collective bargaining agreement with John
Deere.
That collective bargaining agreement is effective October 1, 2015, through
October 1, 2022.
Among the employees the union represents under the collective
bargaining agreement is Lisa Aplin, who works as an assembler at John Deere.
On or about November 18, 2002, Aplin signed a dues check-off authorization
authorizing the deduction of union dues from her wages, which the parties agree
continued in effect under the latest collective bargaining agreement. The authorization
stated that:
This authorization shall be irrevocable for one (1) year or until the termination of
the collective bargaining agreement between my Employer and the Union,
whichever occurs sooner. I agree that this authorization shall be automatically
renewed for successive 1-year periods or until the termination of the collective
bargaining agreement, whichever is the lesser, unless I revoke it by giving written
notice to me Employer and Union not more than twenty (20) and not less than
five (5) days prior to the expiration of the appropriate yearly period or contract
term.
(Dkt. #1-8.)
On July 31, 2015, however, Aplin sent a letter to John Deere stating that she no
longer wished to pay union dues.
Invoking 2015 Wisconsin Act 1, Aplin’s letter
explained that she was now allowed to terminate her dues check-off authorization at any
time, rather than having to wait until the end of the year of the authorization’s life, so
long as she provided at least 30 days’ written notice of termination.
On or about
September 11, 2015, District 10 advised Aplin that her request would not be granted
because it was not presented during the narrow 15 day window leading up to expiration
of the appropriate yearly period or contract term.
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After receiving the union’s letter, Aplin filed a complaint with the Labor Standards
division of the DWD, alleging that “union dues were taken out after opting out of the
union.”
John Deere responded to Aplin’s complaint by producing copies of her
authorizations for check-off of dues and the collective bargaining agreement, advising
that Aplin could only revoke the automatic check-off once a year during a narrow
window leading up to the anniversary date of her signing the checkoff agreement or upon
termination of the collective bargaining agreement, whichever occurs sooner.
On November 12, 2015, an investigator from the Labor Standards Division of the
DWD issued a decision finding that the dues taken from Aplin’s paycheck after she
submitted her withdrawal were “unauthorized and illegal.”
Under Wisconsin Statute 111.06(1)(i) such a deduction is illegal unless you have
the employee’s signed authorization to make the deduction and the authorization
is terminable by the employee giving the employer at least 30 days’ written notice
of the termination. The changes to Wisconsin Statute 111.06(1)(i) required the
30 day termination notice period were enacted as of March 10, 2015 and were
certainly in effect as of July 1, 2015 when the Labor Agreement between the
employer and union was modified and extended.
The Complainant provided the employer with written notice that she no longer
wished to pay union dues or any fees on July 31, 2015. In accordance with
Wisconsin Statute 111.06(1)(i) any union dues or fees deductions taken after the
30 day notice period, August 30, 2015, are considered unauthorized and illegal
deductions from wages earned. Under Wisconsin Statute 109 the wages Ms.
Aplin earned are due and payable.
(Dkt. #1-12.) The letter also informed John Deere that it could seek administrative
review within the DWD within 15 days of the date of this letter.
John Deere apparently did not seek review of the investigator’s decision, but
instead reimbursed Aplin for the union dues deducted from her check. District 10 and
Local 873 then filed this lawsuit.
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OPINION
I.
Defendants’ Motion for Judgment on the Pleadings
Defendants move for judgment on the pleadings on two grounds: (1) plaintiffs
lack standing; and (2) plaintiffs have not named a proper defendant.
A.
Standing
As this court cannot exercise jurisdiction if plaintiffs lack standing to challenge
Wis. Stat. § 111.06(1)(i) on grounds of federal preemption, the court turns to this
argument first.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Schirmer v.
Nagode, 621 F.3d 581, 584 (7th Cir. 2010) (“Unless a case or controversy is presented,
no federal court has the jurisdiction to decide whether a federal, state, or local law is
constitutional.”) To obtain standing under Article III of the Constitution, plaintiffs must
show that they have suffered an injury in fact that is fairly traceable to the challenged
action of the defendants and capable of being redressed by a favorable decision from the
court. Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013); Friends of the Earth, Inc. v.
Laidlaw Environmental Service, 528 U.S. 167, 180-81 (2000).
Here, defendants argue that plaintiffs lack standing because they cannot show that
they have been “injured” by Wis. Stat. § 111.06(1)(i) generally or by any action of
defendants in particular.
Plaintiffs have, however, alleged an injury in fact resulting
directly from DWD’s conclusion that Wis. Stat. § 111.06(1)(i) precluded John Deere
from continuing to withhold union dues from the paychecks of employees who provide
30 days notice of revocation, like Lisa Aplin. Although plaintiffs were not involved in the
agency proceedings, they nevertheless suffered an injury as a result of the agency’s
decision in the form of reduced dues for the remainder of the collective bargaining
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agreement. While plaintiffs’ monetary injury from the agency decision with respect to
Aplin alone appears to be minor, assuming she would have filed a timely notice of
revocation under the terms of the collective bargaining agreement in November 2015
(the same month in which the agency decision came down), plaintiffs also suffered a
broader injury in having a provision of their collective bargaining agreement with John
Deere and its unionized employees essentially rendered void.4 Regardless, plaintiffs’ real
goal is to bring a facial challenge to the legality of Wis. Stat. § 111.06(1)(i), and
ultimately obtain an injunction prohibiting any and all enforcement of § 111.06(1)(i).
Still, plaintiffs’ standing to assert a claim for damages or injunctive relief arising
out of a single agency decision interpreting the statute does not necessarily carry over to a
facial challenge requesting prospective injunctive relief against any and all enforcement of
Wis. Stat. § 111.06(1)(i). See Friends of the Earth, 528 U.S. at 185 (well-established that a
plaintiff “must demonstrate standing separately for each form of relief sought”); City of
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (plaintiff had standing to seek damages but
not injunctive relief against abusive police practices). This is especially so given that the
DWD is not the even agency charged with enforcing § 111.06(1)(i), at least directly.
That authority resides in the Wisconsin Employment Relations Commission (“WERC”),
as well as private parties who may seek relief in Wisconsin courts.
See § 111.07(1)
(§ 111.06(1) is enforced via complaint filed with WERC or courts). Thus, an action
seeking to enjoin all enforcement of § 111.06(1)(i) would appear to require that the
To the extent that plaintiffs are seeking compensatory damages for lost dues, it is unclear
whether preclusionary principles or the Rooker-Feldman doctrine would bar such relief. Moreover,
plaintiffs have not named any defendants from whom they could obtain monetary damages. Still,
this does not change the possible impact on plaintiffs if the DWD’s ruling is followed generally
going forward.
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acting chairman of WERC be named as a defendant in addition to DWD, which appears
to have indirect authority to enforce § 111.06(1)(i).5
Assuming the court would grant plaintiffs leave to amend their complaint to add a
claim against the chairman of WERC, the question remains whether plaintiffs have
alleged an injury sufficient to bring a facial challenge to the statute and to obtain
prospective injunctive relief against any and all enforcement of § 111.06(1)(i). While
this appears to be a close question, neither side addresses it directly in their briefs, which
unfortunately are like ships passing in the night. Defendants focus on their ultimately
unpersuasive argument that the DWD decision did not cause any injury to plaintiffs,
while plaintiffs primarily analyze the existence of statutory standing under § 1983 and the
LMRA, which defendants did not directly challenge.
The most relevant question to
plaintiffs’ request for prospective injunctive relief, however, is whether there is any threat
or possibility that WERC, DWD or some other agency will enforce § 111.06(1)(i) in a
way that will harm plaintiffs in the future.
Plaintiffs have not alleged that there are any current proceedings in WERC or the
DWD that is likely to impair their rights by an unlawful application of § 111.06(1)(i).
Of course, “preenforcement challenges . . . are within Article III,” and “[i]njury need not
be certain” in a preenforcement action. Brandt v. Village of Winnetka, Ill., 612 F.3d 647,
649 (7th Cir. 2010).
A plaintiff may satisfy the injury-in-fact requirement in a
preenforcement action by showing an intent to engage in conduct prohibited by the
challenged statute and a “credible threat” of enforcement of the statute. See Am. Civil
Plaintiffs have named Governor Walker and the State of Wisconsin as defendants, presumably
for purposes of obtaining a broad injunction against enforcement of Wis. Stat. § 111.06(1)(i). As
discussed below, however, neither Governor Walker nor the state is an appropriate defendant in
this action.
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Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 590-91 (7th Cir. 2012). Certainly, even
though not expressly alleged, here, plaintiffs rights might (if not, likely, will) be impaired
by additional wage disputes in which DWD will apply § 111.06(1)(i) to invalidate a
check-off authorization, or by a challenge to the annual renewal of the check-off
provision raised in WERC or a court proceeding.
Moreover, “[p]reenforcement suits
always involve a degree of uncertainty about future events.” Id. at 593-94. See also
Brandt, 612 F.3d at 649 (“Any pre-enforcement suit entails some element of chance....”).
“So long as that uncertainty does not undermine the credible threat of prosecution or the
ability of the court to evaluate the merits of the plaintiff's claim in a preenforcement
posture, there is no reason to doubt standing.” Alvarez, 679 F.3d at 593-94. See also Ctr.
for Individual Freedom v. Madigan, 697 F.3d 464, 473-74 (7th Cir. 2012) (A plaintiff “does
not have to await the consummation of threatened injury to obtain preventive relief”; but
rather, plaintiff must show only that she faces “a realistic danger of sustaining a direct
injury as a result of the statute’s operation or enforcement.”)(citations omitted).
Here, § 111.06(1)(i), on its face, flatly prohibits existing check-off authorizations
contained in plaintiffs’ collective bargaining agreements. Plaintiffs would like to continue
using those check-off authorizations, but doing so invites wage disputes such as that
raised by Lisa Aplin.
Perhaps more significantly, the check-off authorizations risk
exposing plaintiffs and conceivably employees to WERC challenges, which could result in
adverse orders by WERC impairing plaintiffs’ ability to bargain with employers. See Wis.
Stat. § 111.07(4) (“Final orders [by WERC] may dismiss the charges or require the
person complained of to cease and desist from the unfair labor practices found to have
been committed, suspend the person's rights, immunities, privileges or remedies granted
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or afforded by this subchapter for not more than one year, and require the person to take
such affirmative action, including reinstatement of employees with or without pay, as the
commission deems proper. . . .”).
At this stage, these potential injuries are sufficient to establish plaintiffs’ standing
to seek both damages and prospective injunctive relief. See Brandt, 612 F.3d at 649-50
(holding that injury-in-fact was established where the “probability [of injury] is
materially greater than zero”). Even so, to proceed further with a claim for prospective
injunctive relief against any and all enforcement of the statute, plaintiffs must file an
amended complaint naming the chairman of WERC as a defendant.
B.
Improperly Named Defendants
Although plaintiffs have standing to sue, they have named several improper parties
as defendants.
Plaintiffs bring their claims under 42 U.S.C. § 1983 and the LMRA
directly, and have named Governor Scott Walker, the State of Wisconsin, DWD and the
Secretary of DWD as defendants.
Plaintiffs wholly fail to respond to defendants’
argument that the Governor should be dismissed, so the court will grant defendants’
motion to dismiss him without further discussion.
With respect to the other defendants, neither the State of Wisconsin nor the
DWD are “persons” that may be sued under § 1983, so they must be dismissed as to
those claims. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989); Thomas v.
Illinois, 697 F.3d 612, 613 (7th Cir. 2012). The court agrees with defendants that the
state and DWD must also be dismissed as to the LMRA claims, under Eleventh
Amendment immunity.
Although plaintiffs cite several cases regarding federal preemption of state law in
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the area of labor relations, they cite no legal authority supporting their argument that
Congress intended to abrogate the states’ Eleventh Amendment immunity for claims
brought under the LMRA. Similarly, the Seventh Circuit has recognized that no state
has waived its sovereign immunity with respect to claims under § 301 of the LMRA. See
Healy v. Metro. Pier & Exposition Auth., 804 F.3d 836, 845 (7th Cir. 2015). Although
plaintiffs assert a claim under § 302 in this case, plaintiffs offer no support for the
proposition that Congress abrogated, nor that any state waived, its immunity with
respect to § 302 and not § 301. Accordingly, the State of Wisconsin and DWD will be
dismissed from the case.6
This leaves the Secretary of DWD, whom plaintiffs argue is properly named in his
official capacity under the exception to sovereign immunity established in Ex parte Young,
209 U.S. 123, 157 (1908). The court agrees. Under Ex parte Young, a state official can
be sued in an official capacity to correct an ongoing violation of federal law if the official
has “some connection” with the challenged violation.
See Entm’t Software Ass’n v.
Blagojevich, 469 F.3d 641, 644-45 (7th Cir. 2006). Here, although DWD does not have
express statutory authority to enforce § 111.06(1)(i), its decision in the Aplin
proceedings amounts to indirect enforcement of the statute in resolving wage disputes.
Since Secretary Allen appears to have the authority to direct DWD investigators as to
how a statute must be interpreted and applied, he would also have the authority to
enforce an injunction issued by this court prohibiting DWD from applying
§ 111.06(1)(i) in a way that violates federal law.
As discussed above, however, the Secretary of the DWD does not have the
Because DWD will be dismissed from the case, the court need not address defendants’ argument
that plaintiffs failed to properly serve DWD.
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authority to prohibit all enforcement of § 111.06(1)(i). Plaintiffs must, therefore, also
name the chairman of WERC as an additional defendant in order to obtain the full
extent of the relief they seek.
II.
Plaintiffs’ Motion for a Preliminary Injunction
Having resolved defendants’ threshold challenges, the court turns to plaintiffs’
request for a preliminary injunction. A preliminary injunction is an extraordinary remedy
and is never awarded as of right. Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” D.U. v. Rhoades, No. 15-1243, -- F.3d --, 2016 WL 3126263, at
*2 (7th Cir. June 3, 2016) (citing Winter, 555 U.S. at 20).
Plaintiffs have met the low bar for demonstrating a likelihood of success on the
merits. See Michigan v. United States Army Corps of Engineers, 667 F.3d 765, 782 (7th Cir.
2011) (“The threshold for demonstrating a likelihood of success is low.”); Girl Scouts of
Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079, 1096
(7th Cir. 2008) (“[T]he plaintiff’s chances of prevailing need only be better than
negligible.”)
Although the Seventh Circuit has rejected broad constitutional and
preemption challenges to “right to work” laws, see, e.g., Sweeney v. Pence, 767 F.3d 654,
657 (7th Cir. 2014), it does not appear to have considered a specific challenge to a
check-off authorization provision under the LMRA. Indeed, the parties and the court
were able to find only two cases in which courts have addressed the narrow issue
presented here.
In both cases, courts struck down state laws making dues check-off
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authorizations revocable at the will of the employee. See SeaPak v. Indus., Tech. & Prof'l
Emp., Div. of Nat'l Mar. Union, AFL-CIO, 300 F. Supp. 1197, 1200 (S.D. Ga. 1969), aff'd
sub nom. 423 F.2d 1229 (5th Cir. 1970), aff'd sub nom. 400 U.S. 985 (1971); United Food
& Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1218 (D. Ariz. 2013).
Although defendants argue that these cases were decided wrongly, the court need not
resolve that dispute at this stage, since plaintiffs have shown a “better than negligible”
chance of success on the merits by pointing to two supporting cases, one of which was
summarily affirmed by the Supreme Court.
Even though plaintiffs have shown some likelihood of success on the merits,
however, they have not demonstrated that irreparable injury is likely in absence of an
injunction. Plaintiffs are concerned that if Wis. Stat. § 111.06(1)(i) is enforced and
invalidates their dues check-off authorizations, they will lose a significant amount of dues
which will, in turn, hamper their ability to represent their members adequately in
collective bargaining, as well as engage in other protected union activities. The problem
for plaintiffs is they offer no evidence to back up these concerns. For example, plaintiffs
do not even estimate how much revenue they anticipate losing or how else their
operations would be affected specifically by affidavit or declaration. This omission is
particularly significant where, under the plaintiffs’ own allegations, employees -- such as
Aplin -- may opt out of dues deductions during a specified period every year regardless of
§ 111.06(1)(i), something that may have already occurred now that the Wisconsin Court
of Appeals has lifted the injunction on enforcement of that statute.
Thus, at most on the present record, the passage of § 111.06(1)(i) might deprive
plaintiffs of a few months additional union dues for a few employees. In particular, plaintiffs
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make no attempt to explain how deprivation of a few months of union dues would cause
irreparable harm to union operations.7
Plaintiffs’ reliance on vague and conclusory
statements about irreparable harm are simply not enough to show that they are entitled
to the extraordinary remedy of preliminary injunctive relief. Accordingly, their request
for a preliminary injunction will be denied and this case shall proceed to summary
judgment.
See D.U., -- F.3d --, 2016 WL 3126263, at *6 (denying motion for
preliminary injunction where plaintiff showed likelihood of success on merits but failed
to show irreparable harm).
ORDER
IT IS ORDERED that:
1. Defendants’ motion for judgment on the pleadings (dkt. #25) is GRANTED
IN PART as to State of Wisconsin, Governor Scott Walker and the
Department of Workforce Development, all of whom are DISMISSED as
defendants. The motion is DENIED in all other respects.
2. Plaintiffs’ motion for a preliminary injunction (dkt. #2) is DENIED.
3. Plaintiffs may have until July 22, 2016, to file an amended complaint that
names the Chairman of the Wisconsin Employment Relations Commission as
an additional defendant in this case.
Entered this 12th day of July, 2016.
BY THE COURT:
/s/
________________________
WILLIAM M. CONLEY
District Judge
This is not to say plaintiffs could not make a showing of irreparable harm, but simply that they
have not.
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