Wisconsin Supreme Court Decision Challenges Collective Bargaining Rights

July 31, 2014

The Wisconsin Supreme Court today issued a major and controversial decision in a case that could have significant consequences for every state with collective bargaining provisions for public employees.

Recall in Wisconsin in 2011 that there was an intense fight between teacher representatives and other public employee unions on one side and the Wisconsin legislature and Governor Scott Walker on the other over the collective bargaining rights of teachers in that state.  The Wisconsin legislature approved Act 10 even in the face of intense public pressure against it and an occupation of the state capital building. The Act bars collective bargaining between municipal employers, including school districts, and labor representatives on everything except base wages; and removes hours, working conditions, and grievance procedures from the collective bargaining process. Wage increases are limited to the Consumer Price Index, and “fair share” arrangements were barred.

A law suit brought by Madison Teachers Inc, the collective bargaining representative for teachers in the Madison Metropolitan School District, challenged the constitutionality of these provisions in Act 10, and today the Wisconsin Supreme Court held in a 5-2 decision in Madison Teachers Inc. v. Walker that “collective bargaining remains a creation of legislative grace and not constitutional obligation,” handing Governor Walker a major victory.  The court’s decision basically maintains that collective bargaining provisions in Wisconsin state law are the creation of the legislature; and, as such, the legislature has the authority to change them. In an earlier and related Federal Appeals Court decision, the federal court rejected a challenge from teachers and others who objected to distinctions in Act 10 between “General Unions,” which include teacher unions, and “Public Safety Unions,” which include law-enforcement and firefighters.  The court rejected the challenge to the distinction in the law even though the Public Safety Unions had supported Governor Walker’s 2010 election and the General Unions had not.

In a dissenting statement today, Justice Ann Walsh Bradley and Justice Shirley S. Abrahamson voiced their concern that the right to organize has been compromised and that benefits could be denied as punishment to members of “disfavored groups.”

See a good discussion on this case at the Education Week School Law blog at:


Madison Teachers Inc, an NEA affiliate, issued a statement on its web site today.


The statement provides detail on the dissenting statement which argued that the state did not present evidence supporting the requirement that the decision be narrowly tailored to meet a compelling state interest.  The dissent also questions the constitutionality of requiring that an individual give up a constitutionally protected right to bargain in order to obtain benefits from the employer.

No announcement has been made, as yet, regarding the intention of Madison Teachers Inc. or the NEA to appeal this decision.  The basic legal issue here is quite significant as to whether state law regarding collective bargaining can be changed in such a manner as to infringe upon First Amendment rights of free association and rights to petition to address grievances, and Fourteenth Amendment protections of due process and equal protection.    At stake here is whether a state’s collective bargaining law can be unilaterally changed by a legislature over the objections and direct participation of represented groups, and in a manner that denies previously held benefits. This is likely not the end of the process in Wisconsin and it will continue to garner the attention of other collective bargaining states and their employee representatives.

Patrick Burk, Ph.D.

Department of Educational Leadership and Policy


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