Wisconsin public-sector employers are still dealing with the aftermath of 2011 Act 10 and the various legal challenges brought by unions concerning the Act. Two federal courts have validated the law in its entirety, but a state-court ruling overturning parts of the law is awaiting decision of the Wisconsin Supreme Court.
Some public-sector employers have negotiated new one-year labor contracts while the validity of the law remains unresolved. Some of these employers have addressed a wide range of subjects of bargaining, while others have decided to negotiate only base wages in discussion with their unions. Others have developed personnel handbooks in a meet-and-confer process with the union, and some have been less transparent in that process. Others have refused to bargain at all, preferring to adopt a wait-and-see approach, given the various conflicting rulings.
Public-sector employers are carefully watching the so-called Colas decision that sits now in the Wisconsin Supreme Court. Judge Colas, in a decision issued last year, invalidated certain parts of the law, including the prohibition on bargaining over subjects other than “base wages” and the annual recertification process. The legal wrangling over the Colas decision on the recertification process has created even more confusion.
While the courts have refused to stay the Colas decision, Judge Colas himself found the Wisconsin Employment Relations Commission (WERC) to be in contempt of his court for the WERC’s efforts and intent to push ahead with recertification elections this month. In finding contempt, Colas was clear that his decision was that the recertification requirement was illegal and as a result was without effect. Some employers decided to embrace collective bargaining, at least over base wages, given the effect of the contempt decision – which shut down recertification processes and fueled union claims that they were still representatives of employees despite, in some cases, deciding not to seek recertification as required by the law.
The state appealed the contempt ruling, and the Wisconsin Supreme Court vacated the contempt award for procedural reasons. According to the Court, the Colas decision had already been appealed and, as a result, Judge Colas did not have any authority to issue a contempt order. We have come full circle, as the WERC has again moved forward with the recertification process.
Public sector employers and their unions (both current and past) need clarity as to Act 10. The sooner that clarity can come the better in terms of establishing the terms of, and rules applicable to, their relationships. And if Act 10 is validated, public-sector employers and employees, with or without their unions, will need to figure out a way to work toward common goals and purposes under the new rules. The Supreme Court will have the final say. Confusion and uncertainty will continue until the Court speaks.