Thursday, June 16, 2011

AFSCME Challenging Scheme It Endorsed.....

AFSCME (Wisconsin) v. AFSCME

Yesterday several Wisconsin unions, including three Wisconsin Councils of the American Federation of State, County and Municipal Employees ("AFSCME") filed suit in Wisconsin federal court challenging the state's restrictions on collective bargaining by most state employees. As described by the Milwaukee Journal Sentinel, the suit claims that the recent legislation violates both the First and the Fourteenth Amendment to the Constitution of the United States. (See also here, for a report by Reuters.) In particular, the suit alleges that the law, which grants greater collective bargaining rights to police and firefighters than to other state workers, treats one category of state employee --- public safety workers --- more favorably than the rest and thus denies most state employees "equal protection of the law," in violation of the Fourteenth Amendment. The suit also refers to the category of "public safety workers" as "newly-created" and claims that reducing the collective bargaining rights of other employees violates the First Amendment by deterring union activity and granting preferential status to a favored political group --- police and firefighters.

The challenge is both unmeritorious and ironic. The First Amendment protects freedom of "speech," "press," "assembly" and the freedom to "petition" the government for redress of grievances. It does not guarantee the right to bargain collectively over terms of employment. Unions, after all, are labor cartels, which Congress or individual states could ban as such. Indeed, the Supreme Court has expressly held that there is no right for individuals to strike seeking higher salaries in defiance of duly enacted antitrust laws, even when the individuals are doing so for the purposes of making a political point. See FTC v. Superior Court Trial Lawyers, 493 U.S. 411 (1990). If Congress or individual states can outlaw such activity, then it necessarily follows that they need not encourage it by recognizing and bargaining with such unions. Moreover, while the 14th Amendment mandates "equal protection of the laws," it does not require states to authorize all labor cartels simply because it authorizes some. Where economic regulation is concerned, legislative classifications pass muster under the 14th Amendment so long as there is a "rational basis" to support them, unless the classification is based on race, gender or religion or burdens a fundamental right. Thus, Ann Althouse, a Professor of Constitutional Law at the University of Wisconsin, has suggested that the suit is frivolous:

"There's no suspect or quasi-suspect classification, so the courts will give this minimal scrutiny. How is this anything but a frivolous lawsuit?"

The suit is ironic because it represents a 180 degree reversal of the position that organized labor, including AFSCME, took last year. At that time, as previously discussed on this blog, organized labor advocated federal legislation mandating special collective bargaining rights for, you guessed it, public saftey employees! In fact, when the House of Representatives passed a "Public Safety Collective Bargaining Bill" in July, 2010, AFSCME bragged on its website that many of its members had visited members of Congress in support of the legislation. (Indeed, AFSCME repeatedly called for passage of such legislation last year. See here, here and here, for instance.) Such legislation was aimed at those states, like Virginia, that, following the advice of Fraklin Delano Roosevelt, refuse to engage in collective bargaining with public employees and would have required states and localities to allow public safety workers to unionize, even if such unionization was otherwise contrary to state law. (See here for a December 2010 editorial in the Daily Press of Hampton Roads taking issue with the proposed legislation and properly praising Senator Mark Warner for voting against it.) If passed, this legislation would have imposed on several American states the very sort of regime the pending suit claims is unconstitutional!

Perhaps AFSCME's national office will file a brief amicus curiae defending Wisconsin's decision to adopt the same regime AFSCME asked Congress to impose on the nation!