Management Still Holds Clout Following Collective
Bargaining Reversal
By MATTHEW DeFOUR and STEVEN VERBURG
Wisconsin State Journal
Sept. 18, 2012
http://host.madison.com/wsj/news/local/crime_and_courts/management-still-holds-clout-following-collective-bargaining-reversal/article_d3a9b92a-012d-11e2-af92-0019bb2963f4.html

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."

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