Wisconsin's "Act 10"

  • While there is nothing in Smith’s holding preventing states from individually requiring public employers to duty with bargaining units, not all states have adopted such a rule.

  • In Wisconsin, the state legislature passed “Act 10,” which prohibited public employees from collectively bargaining on issues other than base wages. In response to this law, several teachers’ unions sued the State, arguing that Act 10 violated their right to free association.

  • The Wisconsin Supreme Court denied the plaintiffs’ claims, heavily relying on Smith’s holding. The Court held that Act 10 was not forcing public employees to choose between being represented by a bargaining unit or being able to negotiate with their public employer on items besides their base wages.

  • Instead, the Court insisted that Act 10 gave union-represented school employees an advantage over their non-represented peers because Act 10 gave union-represented employees a right to bargain over base wages while there was no right to do so if the employees were not represented. Like the Supreme Court in Smith, the Wisconsin Supreme Court upheld the law because it did not impair the teachers’ ability to join unions. Union supporters have argued that public employers had good reason to oppose Act 10, arguing that unilaterally-imposed terms lead to resistance while collaboratively developed policies bring benefits to both the employer and employees.

     

Indiana

Smith’s holding that there is no constitutional requirement for public employers to collectively bargain with unions has also led to conclusions that there is no right to have a bargaining representative of their choice.  In Indiana, one teachers union requested an election to determine its exclusive bargaining representative after notifying the school district that it had acquired the required votes. The school district denied the union’s request, and the union argued that the school district’s denial of their request violated its members’ First Amendment rights of free speech and association. The Court, relying on Smith, ruled in favor of the school district, holding that public school employees have no right to select collective bargaining representatives of their own choice or to have procedures in place for doing so.

Arkansas

One of the most recent states to adopt restrictions on school employee unions’ rights came from Little Rock, Arkansas in December 2019. The Arkansas State Board of Education elected to reconstitute the Little Rock School District, and prohibited the School District from, amongst other things, contracting with any group that mandated collective bargaining. Because of this prohibition, boards called “Personnel Policy Committees” (PPC) became the default model for school employee representation. Unlike collective bargaining agents, PPC proposals are subject to the discretion of school management, who may simply reject policies or amendments. Additionally, PPCs are composed of only teachers, meaning they lack expertise in drafting budgets, policies, and the laws that union leaders typically hold.  Additionally, the committee approach divides the employee pool into separate factions, eroding the leverage that unions hold as the sole representative of employee interests. 

 

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