54. City of Madison Amicus Brief

8/2/2019 54. City of Madison Amicus Brief

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WISCONSIN

________________________________________________________________

LABORERS LOCAL 236, AFL-CIO, et al.

Plaintiffs,

v. Case No. 3:11-cv-00462-wmc

SCOTT WALKER, Governor of the Stateof Wisconsin, et al.

Defendants.

________________________________________________________________

BRIEF OF AMICUS CURIAEOPPOSING DEFENDANTS MOTION FORJUDGMENT ON THE PLEADINGS

________________________________________________________________

INTRODUCTION

Long before it was statutorily required to do so, the City of Madison (City)

established Collective Bargaining Committees to bargain with employees over

terms and conditions of employment.

1

Once public-sector collective bargaining

was established by statute in 1959, the City continued to successfully bargain

collectively with its employees, in both good and bad economic times. Thus,

whether through common sense or statutory obligation, the City has long used

collective bargaining as an effective tool to manage budgets, maintain a

productive and satisfied workforce, and provide essential services to its citizens.

For recent proof of this success, one need look no further than in the two years

1See Attachment A. Attachment A includes documentation of Common Council Proceedings

from 1951, 1952, and 1953, and a copy of a City Ordinance published in 1956. These documentsshow the existence of a Madison City Bargaining Committee and Madison Council of CityEmployees. These two entities bargained over terms and conditions of employment and thenforwarded proposed agreements to the City Council. Once adopted by the City Council, theagreements were reduced to a City Ordinance.

Case: 3:11-cv-00462-wmc Document #: 54 Filed: 05/02/12 Page 1 of 15


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following the significant economic downturn of 2008, when the City was able to

successfully negotiate with unions over wages and benefits and maintain all

essential services to its citizens.2

2011 Wisconsin Act 10 (Act 10), as modified by 2011 Wisconsin Act 32

(Act 32), destroys this distinguished and effective history of public-sector

collective bargaining in Wisconsin. Act 10 strips public employers of the ability to

collectively bargain with general public employees outside the strict confines of

Act 10; strips general public employees of most all collective bargaining rights;

yet maintains full and robust collective bargaining rights for public safety

employees. As a result, for the first time in Wisconsins history, public employers

are prohibited from collectively bargaining with some employees, required to

collectively bargain with others, and ultimately forced to discriminate between two

defined groups with regard to the terms and conditions of employment it

provides.

Defendants argue simply that the challenged provisions and classifications

of Act 10 are necessary for municipalities to continue operating in the face of

pending state funding cuts. (Defs. Br. In Supp. Of Mot. For J. on the Pleadings,

(dkt. #28) at 13). The City believes the analysis of this issue is not quite so

simple, and that the cumulative effect of the challenged provisions and

classifications will lead to lower employee morale, higher turnover, and more

common work stoppages among public employees. Thus, the City submits this

brief to provide the Court with the unique perspective of a municipal employer

2 See Dave Cieslewicz, A Return to Strife and Strikes, Former Mayor Dave Cieslewiczs Blog

(February 11, 2011, 4:17 pm), http://www.cityofmadison.com/cityhall/archivedBlog/?Id=456.



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faced with implementing the changes contained in Act 10, and to urge the Court

to closely scrutinize this legislation.

ARGUMENT

I. THE COURT SHOULD APPLY A HIGHTENED LEVEL OF SCRUTINYWHEN REVIEWING PLAINTIFFS CONSTITUTIONAL CLAIMS.

Act 10 prohibits municipalities from bargaining with general public

represented employees over any condition of employment except wages, and it

limits those wage negotiations to total base wage increases not to exceed the

Consumer Price Index (CPI). See2011 Wis. Act 10 at 210, 245, 262, 314.

Furthermore, Act 10 limits the term of any collectively bargained agreement with

general employees to one year, requires general employees to annually recertify

their union3, and prohibits employers from deducting union dues via automatic

funds transfer for general employees. See2011 Wis. Act 10 at 227, 242, 289,

298, 9132, 9155. See also(Defs. Br. (dkt. #28) at 4). However, Act 10 does not

impose these same conditions and restrictions on members of mandatory public

safety unions. See2011 Wis. Act 10 at 210, 262.

Plaintiffs Complaint alleges that these provisions violate the First

Amendment and Equal Protection Clauses of the Wisconsin Constitution and

merit strict scrutiny review. Defendants, of course, do not believe the law

implicates a fundamental constitutional right and, therefore, have urged this

Court to review the Plaintiffs constitutional challenges using the deferential

rational basis standard. (Defs. Br. (dkt. #28) at 6-10).

3This Court has already found the recertification and dues provisions of Act 10 unconstitutional in

Wisconsin Educational Assoc. Council, et. al v. Scott Walker, et. al, 3:11-cv-428, Doc. #107(March 30, 2012).



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In the Citys view, the cumulative effect of all of the prohibitions,

restrictions, and classifications in Act 10 can have only one result: Discouraging

general public employees from joining a union and discriminating against those

who choose to do so or who are not part of a public safety union. This is an

infringement of a general public employees freedom of association. Thus, the

City believes this Court should strictly scrutinize Act 10.

1. Act 10 Implicates Fundamental Constitutional Rights.

The First Amendment protects the right of individuals to associate with

like-minded persons to advance common goals. See Runyon v. McCrary, 427

U.S. 160 (1976). The United States Supreme Court has ruled that this protection

specifically extends to the right to unionize. See Thomas v. Collins, 323 U.S. 516

(1945). Interestingly, when the International Labor Organization (ILO) proposed

Conventions No. 87 and 98, concerning freedom of association and protection of

the right to organize, the United States chose not to ratify the conventions

because it believed the protections secured by them merely reiterated rights

already guaranteed by the First, Fifth, Tenth, and Fourteenth Amendments to the

U.S. Constitution.4

Nevertheless, the Defendants briefspends considerable time arguing that

collective bargaining in no way implicates a constitutional right. Specifically,

Defendants argue that while public employees in Wisconsin are free to associate,

speak, and advocate on behalf of themselves, the government is under no

constitutional obligation to listen to them or their union representatives. (Defs. Br.

4SeeCharles J. Morris, A Blueprint for Reform of the National Labor Relations Act, 8 Admin. L.J.

Am. U. 517, 524-525 (1994).



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(dkt. #28) at 2-3). In the Defendants words, collective bargaining is an act of

legislative grace, and there is nothing unconstitutional about providing collective

bargaining rights that are simply less robust than they once were. See id. On

this basic premise, the Defendants argue this Court must necessarily conclude

that the law deserves only a rational basis review.

What the Defendants analysis fails to acknowledge, however, is that

governments such as the State and City are public bodies and that First

Amendment protections are often triggered by the governments voluntary

actions, including those actions taken as an employer. See, e.g., Elrod v. Burns,

427 U.S. 347 (1976)(stating that while government has no duty to employ its

citizens, once it chooses to do so it cannot grant or deny such employment

because of a citizens affiliation with a particular political party); Perry v.

Sindermann, 408 U.S. 593 (1972)(stating that while state college has no duty to

provide unemployment benefits, it may not cut off such benefits on the basis of a

citizens exercise of her religious faith); Hannegan v. Esquire, Inc., 327 U.S. 146

(1946)(although government need not establish postal service, once it does, it

may not condition grant of mailing permit on promise that certain ideas not be

disseminated). Thus, once public employers afford public employees such a

right, privilege, or benefit in employment, the First Amendment necessarily

defines what limits, if any, the State may place on that right.

In this case, the Defendants acknowledge that the State chose to afford

certain collective bargaining rights to all public employees, including the right to

bargain over conditions of employment. Accordingly, the City believes it is



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insufficient for the State to assert that because collective bargaining is an act of

legislative grace, it commits no constitutional violation by discriminating against

members or prospective members of a particular bargaining unit. Arguing that

the State has no duty to listen misses the point, and the Defendants should not

be allowed to hide behind this ill-conceived distinction between rights and

duties.5 Indeed, once the government determines to provide for such bargaining,

it must do so in a manner that passes constitutional muster. Therefore, this court

should apply a heightened level of scrutiny.

2. Act 10 Penalizes Employees Who Choose to Exercise TheirFreedom of Association.

A law which significantly interferes with the exercise of a fundamental right

is subject to heightened scrutiny, and can be upheld only if it is supported by

sufficiently important state interests and is closely tailored to effectuate only

those interests. SeeZablocki v. Redhail, 434 U.S. 374, 388 (1978). Such a law

significantly interferes with a fundamental right if, considering the importance of

the benefit withheld or the penalty imposed to those subject to the classification,

it is likely to significantly burden the ability of those subject to the classification to

exercise that fundamental right. See, e.g., id. at 283-387; Lloyd v. Philadelphia,

1990 U.S. Dist. LEXIS 8073 (E.D. Pa. 1990).

In Lloyd, the City of Philadelphia adopted an ordinance under which the

city provided certain health benefits only to those of its employees who joined

5Whenever there exists a right in any person, there also exists a correlative duty in some other

person or persons not to abridge or interfere with the exercise of that right. SeeHohfeld, SomeFundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1930); Seegenerally, Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81Harv. L. Rev. 1439 (1968).



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AFSCME. See id. at 3-5. The city also adopted a regulation that provided

employees who joined AFSCME could be absent from work for a doctors

appointment without having those hours deducted from their accrued sick leave,

but did not afford that same privilege to employees who did not join AFSCME.

The plaintiff in Lloydrefused to join AFSCME. First as a probationary employee

and then as a permanent employee the plaintiff was forced to buy health

insurance at her own expense and deduct any amount of time spent at the

doctors office from her accrued sick leave. See id. at 7-8. The plaintiff

challenged the city ordinance and regulation on the basis that they violated the

First Amendment and the Equal Protection Clauses of the Fourteenth

Amendment by interfering with her freedom to associate or, in her case, freedom

not to associate. See id. at 15-16.

The defendants in Lloydargued for a lower level of scrutiny, in part, on the

basis that heightened scrutiny is warranted only for classifications which directly

order, require or prevent association, not for those which merely are likely to

deter employees from declining to associate. See id. at 17-18. The Court

disagreed. The Court noted that if the defendants were correct, courts would

never need to discuss the likelihood of interference with freedom of association,

since only direct bars to, or compulsion of, association would be subject to

heightened scrutiny. See id. at 18. As it applied to the plaintiff in Lloyd, the

Court stated that there [was] no doubt that the availability of City -funded health

benefits would be important to City employees in deciding whether to join

AFSCME[and] that it would likely deter City employees who might otherwise



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decline to join AFSCME from so doing. See id. at 17. Accordingly, the Court

held that the ordinance and regulation infringed on the plaintiffs freedom of

association. See id. at 22-23.

In making its decision, the Lloydcourt relied on a United States Supreme

Court case which struck down an unconstitutional burden on the right to travel.

SeeMemorial Hospital v. Maricopa County, 415 U.S. 250 (1974). In that case,

Maricopa County established a one-year residency requirement as a condition of

receiving free, county-provided health care. Though the requirement did not

expressly prohibit interstate travel, the Court held that the compelling-state-

interest test would be triggered by 'any classification which serves to penalizethe

exercise of that right Id. at 258 (quoting Shapiro v. Thompson, 394 U.S. 618

(1969)(Emphasis in original)). The Court went on to explain, a State may not

protect the public fisc by drawing an invidious distinction between classes of its

citizens, so appellees must do more than show that denying free medical care to

new residents saves money. Id. at 263.

In this case, the Defendants similarly argue that nothing in Act 10 directly

bars public employees from joining a union and that therefore the legislation does

not impact an employees right to associate. Instead, they assert that the only

thing the law does is draw distinctions among public employees with regard to

which collective bargaining privileges are available to which public employees.

(Defs. Br. (Dkt. #28) at 7). As in Lloydand Maricopa, the Defendants argument

should fail. There can be no doubt that the provisions of the legislation which,

among other things, prohibits general employees who choose to join a union



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from receiving total base wage increase exceeding the CPI, requires workers to

annually recertify their union, and prohibits employers from deducting union dues

via automatic funds transfer, would be absolutely determinative to City

employees deciding whether to join a union. In the Citys experience, wages

and in particular wage increases are the most important condition of

employment to its employees. Any possible limit on what employees will be able

to earn is likely to deter them from joining a union.6 When one adds to that the

prohibition on bargaining over any other benefit and the requirement that they

recertify every year, it seems to the City a near certainty that the cumulative

effect of these restrictions are nothing more than a penalty for union

membership, and that they will almost certainly cause the majority of general

employees to refuse union membership.

For these reasons, the City submits that this Court must review Plaintiffs

constitutional challenges using a heightened level of scrutiny.

II. THE CHALLENGED CLASSIFICATION MUST SURVIVE HEIGHTENEDSCRUTINY, YET DEFENDANTS STATED RATIONALE CANNOTWITHSTAND A RATIONAL BASIS REVIEW.

Defendants have failed to make any argument regarding Act 10s ability to

survive a heightened level of scrutiny, perhaps assuming this Court will apply a

rational basis test. To succeed under the rational basis test, the Court must

determine that Act 10s purpose is reasonable, and whether the law rationally

advances that purpose. See Moran v. Beyer, 734 F.2d 1245, 1247 (7 th Cir.

6On March 26, 2012 the Wisconsin Employment Relations Commission (WERC) submitted to

the Governors office a set of draft emergency rules regarding the calculation of total base wages,which appear to the Amicusto create an even greater restriction on bargaining over wages thanwas originally contemplated by municipalities when Act 10 was passed. SeeAttachment B,Memorandum Accompanying Dissenting Vote of Commissioner Judith Neumann to the March 26,2012 Draft Proposed Emergency Rules Regarding Base Wages Calculation.



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1984). The City believes Defendants have failed to show that Act 10 rationally

advances a municipalitys ability to maintain budgets and avoid work stoppages

in tight economic times, and that the Defendants flimsy rationale exposes the

laws real purpose: to punish those who belong to unions and encourage them to

leave the union.

In their brief, Defendants explain Act 10s rationale here:

it is in the interest of the State to treat employeeswho perform public safety functions differently fromother public employees....The State has at its disposalknowledge of the services provided by each state and

municipal agency and the capacity to make adetermination as to the States ability or inability tooperate in the absence of certain of those servicesdue to a job action and/or strike by state andmunicipal employees.The existence of the publicsafety category indicates that the State may havedetermined there were insufficient resources availableto ensure the continuation of some critical services inthe event of a job action.

(Defs. Br. (Dkt. #28) at 14-15).

Defendants stated rationale appears to be that in order to make sure

municipal agencies maintain the abilityto operate, it is necessary for the State

to give public safety employees ordinary certification procedures and extensive

bargaining rights, but to deny those same rights to general public employees

choosing to join voluntary unions.

The Defendants support their rationale by referring vaguely to having

knowledge of services provided by each municipal agency and the capacity to

make a determination as to what services are necessary for each municipal

agency to operate. Yet Defendants offer reference to no concrete data,



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correspondence, or authority substantiating where this knowledge comes or

whether it is even accurate to begin with.

While no one disputes the importance of police and firefighters, it is simply

not true that a Citys ability or inability to operate rests solely on the shoulders

of these workers. Indeed, many departments are necessary for a city to operate

in anything other than a police state. Garbage collection services ensure our city

streets, neighborhoods, and homes do not smell and present public health

threats. Snowplow services ensure that our streets are passable in the winter.

Water utility services ensure that the water we drink is clean. Transit services

ensure that thousands without other transportation can get to work and school on

time. While police and firefighters are crucial to maintaining public safety and

responding to emergencies, the other services, performed by general public

employees, are also critical to a citys overall ability or inability to operate in

tight economic times.

Furthermore, Defendants assertion that the classification and restrictions

contained in Act 10 are necessary to balance the budget in the face of state

funding cuts is also nonsense. The time and effort to negotiate and reach

individual agreements with all general public employees would be not only be

vastly more expensive for the City, but there is no reason to think it will save

money. For example, if the City has x dollars that it can spend on salary

increases, it cannot go above x dollars whether it negotiates with a group or

individually. It simply becomes an administrative nightmare and exponentially

more expensive for the City to engage in individual negotiations.



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Defendants apparently labor under a totally inaccurate understanding of

budgeting by public bodies. In preparing a budget and engaging in bargaining

over wages or benefits of any kind, the City has determined what amounts might

be available for salary increases or benefits. That amount is limited by political

factors and legal limitations such as the levy limit. But once that limit is known, it

is a limit that applies regardless of whether the City is negotiating with

represented employees or assigning increases to non-represented employees.

The invitation to discriminate set out in Act 10 does not provide the City with an

effective tool in the overall effort to manage a budget.

Thus, the City believes that the Defendants stated rationale would not

only fail strict scrutiny review, but that it also fails to provide rationally advance

the purpose of ensuring municipalities can maintain budgets and avoid work

stoppages.

III. PUBLIC EMPLOYERS ARE IN A BETTER POSITION TO MANAGEBUDGETS, MAINTAIN WORKFORCES, AND PROVIDE ESSENTIALSERVICES WHEN THEY ARE ALLOWED TO COLLECTIVELYBARGAIN OVER A WIDE VARIETY OF WORK CONDITIONS.

The State of Wisconsin has long recognized the importance of collective

bargaining rights. In 1959, Wisconsin became the first state to enact a collective

bargaining act for public employees. This law and its subsequent amendments,

including Municipal Employee Relations Act, Wis. Stat. 111.70 et seq.,

established a system of collective bargaining that ensured labor peace by,

among other things, requiring State and local governments to negotiate in good

faith with public employees and preventing public employees from striking. In the

more than four decades that the Citys employees have enjoyed the statutory



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right to collectively bargain, the Citys residents, employees and managers have

enjoyed labor peace and successfully managed budgets.

Act 10 prohibits municipalities from engage in collective bargaining with

general public employees outside the very strict confines of the law. See Wis.

Stat. 66.0508(1)(2011). So, in the name of giving municipalities a tool to

manage tight budgets and avoid work stoppages, Act 10 actually strips

municipalities of the primary tool used for decades to craft tight budgets and

maintain positive relations with their employees. Thus, while the stated intended

effect of Act 10 is to give municipalities more flexibility to manage budgets and

avoid work stoppages, the City believes the opposite will ultimately be true.

The City has a workforce of more than 3,000 public employees, over two-

thirds of whom were members of unions when Act 10 was passed. Within

individual departments one can find both union and non-union employees at

nearly every level of responsibility. Negotiating with each unrepresented

employee individually would be an incredibly time-consuming process, if not

impossible. When the City negotiates with bargaining units, the units themselves

take on a portion of the leg work. The City need only negotiate with

representatives of each unit, and the representatives are then responsible for

contacting the individual members. In fact, it has been the Citys experience that

negotiating with strong unions as opposed to weak unions or no union at all is

the most efficient, effective, and easy way to craft tight budgets. This is because

strong unions have the trust and ear of their union representatives and these

representatives are usually the most able to take a proposed agreement to their



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members and get it approved. In the Citys experience, if problems arise in

collective bargaining, it is usually when the City bargains with a weak union

whose representatives cannot achieve a consensus from its members.

Nevertheless, Defendant urge that this legislation, which weakens unions, will be

the key to managing budgets. It will not.

Additionally, the City has never been forced to treat employees differently

because of their union-membership status, yet this law will force the City to

discriminate between represented and unrepresented general employees and

between all general employees and public safety employees. Discriminating

against its employees in such a way could threaten the Citys relationship with its

employees and thus undermine its ability to operate and provide consistent

services to its citizens. It is well known that employees in both the private and

public sector wish to have a voice in their workplace lives. Giving employees a

voice results in more productive and invested workers. Taking away that voice

results in a dissatisfied workforce.7 And a dissatisfied workforce is one more

likely to engage in work stoppages.

Act 10 creates a workforce where public safety employees have a strong

voice, unrepresented general employees have a weak voice, and represented

general employees have virtually no voice at all. The type of discrimination

required by Act 10 is likely to create strife among employees and decrease

employee morale and productivity and make it more difficult for municipal

7SeeKenneth G. Dau-Schmidt, Promoting Employee Voice in the American Economy: A Call for

Comprehensive Reform, 94 Marq. L. Rev. 765, 791-809 (2011).



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employers to manage budgets, supposedly the very thing the Defendants law is

trying to avoid.

CONCLUSION

The City asks the court to carefully scrutinize the constitutionality of this

Act. Act 10 discriminates between unionized and nonunionized employees and

public safety and non public safety employees, with no rational basis for the

distinction much less a compelling state interest as would be required for this

imposition on First Amendment rights of association. The only rationale for the

law is its intended rationale: to punish those who belong to unions and

encourage them to leave the union.

This Court should see Act 10 for what it is: a blatant discrimination against

unionized employees. Try as they might, Defendants have offered the Court no

lawful rationale for this discrimination.

Dated this 2nd day of May, 2012.

CITY OF MADISON

___________/s/________________Michael P. May, State Bar No. 1011610City AttorneyEmail: [email protected] W. Strange, State Bar No. 1068817Assistant City AttorneyEmail: [email protected]

Office of the City AttorneyRoom 401, City-County Building210 Martin Luther King, Jr. Blvd.Madison, Wisconsin 53703Phone: (608) 266-4511; Fax: (608) 267-8715Counsel for Non-Party Amicus


54. City of Madison Amicus Brief

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