Contract battles, lawsuits, underscore messiness of post-Act 10 world

By M.D. Kittle  /   March 15, 2013  /  

 

  

 

 

REMEMBER WHEN: Six months after a Dane County Judge struck down major portions of Wisconsin’s Act 10, confusion, lawsuits abound.

By Ryan Ekvall | Wisconsin Reporter
MADISON — Lawyers seemingly have been among the biggest winners in the aftermath of Gov. Scott Walker’s sweeping collective bargaining overhaul.
The latest in the lineup of Act 10 chasers includes legal counsel in the Janesville School District’s contract — or non-contract — war of words and legal action.
The Janesville Education Association is threatening to sue the school board unless the district agrees to sit down at the negotiating table by next Wednesday evening, even though Walker’s Act 10 restricts most collective bargaining for most unionized public employees in the state.
David Parr, president of the JEA, told Wisconsin Reporter that this week administrators showed teachers a video in which it was first announced the union would receive a blank contract on April 10.
“All it says is, ‘Sign this contract and be willing to work under any conditions. If you don’t sign it by April 17, you will be fired,’” Parr said.
“Have you ever signed a contract that was blank?”
The union contends Dane County Circuit Court Judge Juan Colas’ ruling last September, which struck down most of Act 10, applies to all public sector bargaining units — and not just the Madison and Milwaukee-based plaintiffs of the case.
While the state is appealing the case — and despite the fact that a federal appeals court has upheld Act 10 in its entirety — the union believes Colas’ ruling trumps all for now and that the school board needs to bargain on a new contract, sans collective bargaining reforms.
Act 10 limits collective bargaining to wage increases, up to the rate of inflation. It also forces union members to recertify the union every year, prohibits automatic dues deductions and agency fees for public employees who prefer not to join a union.
A federal appeals court has upheld Act 10 in its entirety, while state District IV Court of Appeals on Tuesday rejected the state’s request for a stay of Colas’ ruling while the case is under review. The state appeals court wrote that “ongoing litigation is inevitable” until the Wisconsin Supreme Court resolves the issue.
Case in point: the Janesville School District.
“We’re following the law,” Parr said. “We want a discussion. Let’s get this worked out so we know what we’re signing.”
The school board, likewise, argues it is following the law, which has evidently caused confusion for both public employers and unions.
“I don’t know where this all comes from,” said Bill Sodemann, Janesville School Board president. “They’ve liked what we’ve done so far. They’ve been responsive in a positive way. Now all of a sudden we get this.”
Janesville is joining school districts around the state, moving from pre-Act 10 contracts driven by powerful unions to post-Act 10 contracts of effectively one-way negotiations. Districts are required to put together handbooks outlining the terms of the labor agreement under the provisions of Act 10.
Sodemann said the contract the board will offer teachers will allow them to “resign without penalty by June 15,” if they don’t like the terms of the new handbook. He said school administrators took the same deal recently.
Parr says that’s a load of Wisconsin Guernsey bull. He doesn’t expect to see a handbook by June 15.
“He’s misunderstanding,” said Sodemann, who expects the handbook will be completed soon. “This is nothing new. Every time we come to a negotiation year, we don’t have the contract settled by this time. We’re not sure of all the details yet.”
The board appears to be in a damned-if-they-do, damned-if-they-don’t position, according to one constitutional expert.
“If the Janesville School Board negotiates a contract that is not compliant with Act 10, it runs the risk of being sued by a taxpayer or a teacher that wishes to negotiate individually on terms that are not permissible topics for collective bargaining,” said Rick Esenberg, president of the Wisconsin Institute for Law and Liberty. “It also runs the risk of the contract being unlawful should the Dane County Circuit Court decision be reversed.”
Barry Forbes, associate executive director and staff counsel at the Wisconsin Association of School Boards, said most school boards, like Janesville’s, have refused to negotiate contracts post-Act 10.
“We’ve advised boards not to get into a protracted argument whether Colas’ decision applies to them or not. Or whether they can bargain something beyond what Act 10 allows,” Forbes told Wisconsin Reporter.
Government unions could instead take their case to the Wisconsin Employment Relations Commission, as JEA appears to be threatening.
Other legal action pending
Wisconsin Reporter obtained documents showing that, in December, the Kenosha Education Association and the Weyauwega-Fremont Education Association filed separate “prohibited practice complaints” with the Employment Relations Commission against their respective boards of education for “refus(ing) to bargain collectively with a majority of employees” under state statute.
Both cases cite the Colas ruling as the basis for the complaint. In both cases, attorneys representing the school districts argued it was premature to negotiate new contracts while Act 10 is moving through legal system.
Peter Davis, general counsel for the commission, said Bayfield County and Marinette County unions also filed complaints based on the Colas ruling.
“Generally speaking, none of those cases have moved forward in the process in part or in whole because everybody was waiting to hear what the Court of Appeals had to say on that matter,” Davis said.
“People may have different views as to what the Court of Appeals decision holds. Some unions might decide they’re not willing to wait for the (final) decision. They might ask to proceed,” he said.
If a union decided to move forward, it could be at least four months before any decision comes from the commission, according to Davis.
The commission has ruled on a similar case regarding the uncertainty of Act 10 in the court system.
A previous “window of opportunity” used by unions to try to rush employers back to the bargaining table occurred in 2011 when a Dane County Circuit Court judge ruled Republicans had violated the state open meetings law when passing the bill. The state Supreme Court, in a narrow ruling, sided with Republican lawmakers, upholding Act 10.
The International Brotherhood of Electrical Workers Local 965 filed a complaint against the Public Utility Commission in Richland Center.
“That decision said that it was reasonable for the city of Richland Center to delay bargaining because they don’t know what the law is. I imagine in Janesville it’s a very similar circumstance,” said Forbes.