• Voluntary Dues Deductions
  • May 29, 2013
  • Law Firm: Boardman Clark LLP - Madison Office
  • One of the issues in play in the continuing legal challenges to the constitutionality of 2011 Wisconsin Act 10 (“Act 10”) is whether school districts are allowed (or required) to honor voluntary dues deduction requests for bargaining unit members.

    Prior to Act 10, voluntary union member dues deduction clauses were included in virtually all collective bargaining agreements.  In addition, the collective bargaining agreements contained fair share agreements requiring the mandatory withholding of union dues by districts as a condition of employment for employees not electing to have dues paid to the bargaining representative.  Such agreements, however, were specifically prohibited by Act 10, as was any withholding of union members’ dues by school districts, including those requested by employees.

    In a legal challenge to Act 10 filed in the United States District Court for the Western District of Wisconsin, Judge Conley upheld Act 10 in its entirety, except for its prohibition on voluntary dues deductions and its requirement for annual certification elections; districts were compelled to “facilitate” the requests by employees for voluntary dues deductions.  In a clarification of his ruling, Judge Conley approved a union-developed form for dues deduction which specifically authorized the deduction to continue for one year from the date of authorization.  Based upon that ruling, districts were advised to honor any form that they received from an employee that complied with the court’s order.  At that time, we also counseled districts that they were not required to honor a withholding request for union dues if the district did not allow or have in place withholding for other deductions.

    In January 2013, a three-judge panel of the Seventh Circuit Court of Appeals issued a decision upholding Act 10 in its entirety.  Significantly, the panel concluded that Act 10’s prohibition on dues deduction did not violate the First Amendment or Equal Protection Clause.  Thus, under federal constitutional law, Act 10’s prohibition on dues deduction was back in force.

    In the interim, however, Judge Juan Colas, in a Dane County Circuit Court case challenging Act 10 on state constitutional grounds, also held the prohibition on voluntary dues deduction unconstitutional.  That decision did not immediately impact the state-wide status of dues deductions because districts were complying with the federal court decision.  However, once the Seventh Circuit reversed Judge Conley’s decision, a question existed as to whether the Dane County Circuit Court decision had similar state-wide applicability.

    That question was addressed in the appeal of the Circuit Court decision.  In ruling on the State of Wisconsin’s motion to stay the applicability of that decision, the Wisconsin Court of Appeals confirmed that circuit court decisions do not have the same binding effect as appellate decisions.  In other words, only the parties to a particular court case are bound by the decision in that case, although the same legal issues could be raised by non-parties in other litigation.

    What does this mean with respect to voluntary dues deductions?  Given the Seventh Circuit’s decision upholding the constitutionality of Act 10’s prohibition on voluntary dues deductions and the inapplicability of the Dane County decision on districts not parties to that litigation, it is our opinion that districts are prohibited from complying with individual union member’s requests for voluntary withholding of union dues.  We also believe that members do not have a constitutional right to voluntary withholding.

    Thus, at the present time, districts should put in place a plan of discontinuing such deductions. As a practical matter, individual requests currently in place are typically spread out by districts over the course of the school year and through those payroll periods.  We believe that it is appropriate for districts to continue to honor such requests and withhold union dues pursuant to such requests through the end of the contract year (June 30) and discontinue withholding for subsequent payrolls.

    Advising unions now of the district’s intention to cease dues deductions allows the unions time before the end of the school year to make arrangements for alternative means of collecting dues from members.  It also gives the unions notice of the district’s intentions which will hopefully be viewed by the unions as one more piece of evidence of the district’s intention to keep the lines of communication open between the parties.

    We will continue to monitor this issue as the legal challenges continue, which may yet again change the legal status of dues deductions.  There is currently a motion filed in the Dane County litigation seeking an injunction against the Wisconsin Employment Relations Commission from proceeding with certification elections until the appeal is concluded.  In addition, the appeal of the Dane County litigation currently resides in the Court of Appeals; however, the Court of Appeals has requested that the Wisconsin Supreme Court take the case immediately.  There is also a second case pending in federal court which raises identical legal challenges to Act 10, including its prohibition on dues deductions, as raised in the Dane County litigation.