Court decision produces twist in Wisconsin union fight

In Wisconsin, the tug of war over unions shows no signs of letting up.

Following the ruling earlier this month that struck down parts of the state’s stringent collective-bargaining law, public-sector unions are now pressing for a quick return to the negotiating table to revise their contracts. The unions’ strategy is to ink new deals before a higher court can potentially reinstate the legislation.

Separately, the Seventh Circuit Court of Appeals in Chicago heard arguments Monday about the constitutionality of the collective-bargaining law. That suit is headed by the Wisconsin Education Association, which represents public-education employees in the state.

The outcome of the tug of war is still up for grabs. Because so little case law exists to address legislation that targets the bargaining powers of public-sector unions, there “is potential for legitimacy” to the ruling that came down earlier this month, says Paul M. Secunda, an associate professor of law at Marquette University Law School in Milwaukee. But “there’s also a lot of room for disagreement.”

Wisconsin Gov. Scott Walker (R) signed the collective-bargaining legislation, named Act 10, into law in March 2011. Protesters claimed that the limitations on public-sector unions (except police and fire) were a political maneuver to weaken union powers. Governor Walker framed his efforts as a way to rein in state spending, a position he says was validated after he prevailed in a recall election in June.

This month, Dane County Judge Juan Colas ruled that the law violates both the state and federal constitutional rights of workers to free speech, free association, and equal representation under the law. Judge Colas also ruled that the law violates a special “home rule” charter of the state constitution that allows city workers in Milwaukee to determine their pension contributions rather than the state.

Walker criticized the ruling as political, describing Colas as a “liberal activist.” Wisconsin Attorney General J.B. Van Hollen filed an appeal last week and is asking the courts to freeze the ruling until an outcome is determined. A hearing is scheduled Oct. 4.

Central to Colas’s decision is how he perceived Act 10 to treat two sets of public-sector workers differently: Although Act 10 addresses educators and public-safety workers, it has no effect on nonunionized workers, such as municipal clerks or courtroom employees.

Union workers are “being penalized for being in unions, and that’s the problem,” says Professor Secunda. “The state could have chosen to deny the right to bargain for anyone, but that’s not what it’s done. It said, ‘If you’re not in a union, you can individually bargain with us, but we won’t bargain with you if you’re in a union.’ And that’s what Judge Colas found so objectionable.”

The separate action at the Seventh Circuit Court of Appeals also explores whether Act 10 violates First Amendment and equal-protection rights – but only connected to its requirements that members recertify a union’s right to organize each year and that the unions can’t automatically deduct dues from worker paychecks.

US District Judge William Conley struck down both provisions to Act 10 in March. His ruling did not address the law’s elimination of collective-bargaining powers on all issues but base wages.

Although arguments were heard Monday, the three-judge panel hearing the case said they would not issue a decision that day.

With Act 10 in sudden limbo, many municipalities are unsure how to proceed with contract terms and budget savings that were approved under or attributable to the provisions of the law.

And some unions are anxious to renegotiate contracts before the Colas ruling is potentially blocked by a higher court. For example, the Milwaukee Teachers’ Education Association is requesting that the city’s public-school system engage in collective bargaining for three of its units – educational assistants, bookkeepers and accountants, and substitute teachers – whose contracts expired in June. The organization also wants bargaining to start this fall for its teacher contract, which ends next June.

Similarly, the District Council 48 of the American Federation of State, County, and Municipal Employees, which represents about 100,000 employees in Milwaukee County, is requesting that municipalities start the bargaining process. Because most budgets were drafted under Act 10, many municipalities say they are either still reviewing the impact that a sudden bargaining process would have on budgets, or refusing to open negotiations because it is so late in the budgetary process.

“In the short term, we are moving ahead with our budget. It would be really difficult at this point to start over,” Brendan Conway, a spokesman for Milwaukee County, told the Milwaukee Journal Sentinel. The county’s 2013 budget is due for introduction on Thursday.

Mr. Van Hollen, the attorney general, says he is requesting an immediate stay of the Colas ruling to prevent “this area of confusion right now.”

In talking with WISN television in Milwaukee on Sunday, Van Hollen said that with the current ruling, the state is “going to have school districts and municipalities that don’t know how this law applies to them now, whether this law applies to them now.” He added, “And just that sheer confusion is what we’re looking to avoid.”