Management Still Holds Clout Following Collective Bargaining Reversal
September 19, 2012
By MATTHEW DeFOUR and STEVEN VERBURG Wisconsin State Journal Sept. 18, 2012
Re-printed in LaborPress September 19, 2012
A ruling reversing key provisions of the state’s controversial collective bargaining law may leave most negotiating clout in management hands, despite worries by some that the court action could trigger big retroactive payouts to government union workers.
On Monday, lawyers for major public employee unions, school boards, local governments and others were still analyzing last week’s ruling by Dane County Circuit Judge Juan Colas. Even so, the leader of the powerful Madison teachers union called for immediate negotiations on a new contract.
But because Colas’ ruling didn’t reinstate “interest arbitration” — which before 2011 gave final say in contract disputes to an independent arbitrator — school and municipal managers will continue to hold the upper hand in negotiations, said a leading state labor relations attorney.
“It’s commonly accepted that without interest arbitration the employer is free to come to almost any conclusion it desires as long as it has bargained in good faith,” said Peter Davis, general counsel for the Wisconsin Employment Relations Commission, a co-defendant in the Colas case.
But Andrew Phillips, an attorney who advises public administrators, worries Colas’ ruling could take effect retroactively, forcing huge costs on local governments that could be required to refund money, such as additional pension and health care premiums extracted from employees whose contracts had expired.
Management attorneys were advising local officials to hold off on any new negotiations until it is clear if the ruling would be stayed until appeals play out.
Ruling finds law unconstitutional Colas ruled Friday that the law, championed by Republican Gov. Scott Walker and his legislative allies, violated school and local government employees’ constitutional rights to free speech, free association and equal representation. It affects local and school employees but not state or University of Wisconsin System employees.
The law applied to all public employee unions in the state except those representing public safety workers, local transit workers and emergency medical service employees.
Attorney General J.B. Van Hollen said Monday he would ask the court to put the ruling on hold while he prepares an appeal, but he had not decided whether to ask the state Supreme Court to take it directly without a first stop at the court of appeals.
Still, John Matthews, executive director of Madison Teachers Inc., one of the plaintiffs in the lawsuit seeking to overturn the law, said the Madison School District should start contract talks now to replace the contract that expires in June 2013.
Superintendent Jane Belmore said the district should put on hold any negotiations or additional action on crafting new work rules and compensation policies outside of the bargaining process because of the legal uncertainties.
MTI’s current contract was negotiated and approved before the law, known as Act 10, took effect. Most school districts and local governments are no longer under collective bargaining agreements, which has given employers wide latitude to change work rules, benefits and health insurance carriers with limited or no employee input.
Wisconsin State Employees Union director Marty Beil and Rick Badger, director of a major municipal employee union council, said they were awaiting advice from their attorneys before deciding their next moves.
Andrew Reschovsky, a professor of public affairs and applied economics at UW-Madison, said school boards and districts are facing such difficult financial times that teachers may not see much of a financial difference if collective bargaining is restored.
“If Act 10 is declared unconstitutional, that isn’t going to change a lot of the fiscal realities,” Reschovsky said. “School districts don’t have a lot to give.”
Balance of power not restored Barry Forbes, a lawyer for the Wisconsin Association of School Boards, said Colas’ decision didn’t necessarily restore the balance of power at the bargaining table.
Before 2011, state law required local governments to bargain over wages, hours and work conditions.
Last year’s collective bargaining law left only wage talks mandatory, and it strictly limited amounts of raises. Negotiations on hours and work conditions were prohibited.
Colas’ decision would allow bargaining over hours and work conditions, without making them mandatory, Forbes said.
By changing hours and work conditions from a “prohibited” subject of bargaining to a “permissive” subject of bargaining, Colas’ decision puts more pressure on school districts and municipalities to talk to employees about changes in work rules, said Tamara Packard, a lawyer with Cullen, Weston, Pines and Bach, which represented Madison teachers in the lawsuit.
“They get to pass the buck when it’s prohibited and they have to answer to the public when it’s permissive,” Packard said.
Packard said the lawsuit resulting in Friday’s decision did not seek to reinstate interest arbitration, which had existed for 30 years as a way to avert labor unrest. She said the Legislature could restore arbitration if labor unrest returns to levels that existed in the 1970s before arbitration was enacted.
“The ground has still changed,” Packard said. “We are not where we were pre-Act 10 entirely, but the world is a different place.”