The ink was barely dry on a state judge’s decision to strike down much of Wisconsin’s new collective bargaining law. This was on the heels of a federal court decision that also struck down some of the same provisions. Peter Davis, chief legal counsel for the Wisconsin Employment Relations Commission (WERC), took the microphone at the Wisconsin School Law Seminar in October and looked out at the perplexed school board members and administrators.
What did the decisions by Federal Judge Conley and State Judge Colas mean for collective bargaining? Were school officials to follow the original intent of Act 10 which struck down most of collective bargaining? Was the federal court decision more important than the state court decision? Was Act 10 totally dead?
Peter Davis called the situation “massive uncertainty” and expressed what every school official was thinking: “What the hell are we supposed to do?”
Davis worked his way through the tall grass in an attempt to get to the other side of this legal swamp. Would the WERC commissioners advise the school officials to follow one or both court orders, or ignore both completely and follow the original provisions of Act 10? Davis said that the commission was already advising school districts to follow the federal ruling. He wasn’t sure about the state court ruling, but he spent most of his time telling school officials what they could or could not do if the state court ruling stood.
The Wisconsin Association of School Boards is advising their members to look to the Colas decision which strikes down much of Act 10. They believe ultimately that the WERC will advise elected officials to follow Colas as well.
But the courts are not standing still. Soon the federal 7th district court will rule on the Conley decision. In addition, another lawsuit has been filed in federal court which more closely follows the lawsuit before the state court. Since the Wisconsin state constitution closely follows the U.S. Constitution, and the questions in these suits deal with equal protection provisions in both constitutions, Davis believes that whatever the federal court decides will trump whatever happens in state court.
In the meantime, just what can school districts negotiate with their unions? Davis says quite a bit. If the Colas decision is presently the law of the land, contracts can allow the school districts to even pay the full share of health insurance and retirement contributions without any portion paid by the employee. They can continue to bargain over seniority rights, pay scales, working conditions, you name it. They can continue to deduct union dues from everyone’s paychecks using “fair share” provisions.
Here is the kicker – school districts can negotiate these provisions, but they don’t have to. Only wages are mandatory. And if an impasse is reached, the school district can just implement its final offer without any mediation or arbitration.
You might think that all this freedom and power would make school officials happy, and you would be wrong. A few districts are cheering right now, but soon reality will set in. No district wants to get too far in front. Give too much away to teachers in a contract, and voters will come down on elected officials. Give as little as possible, and teachers will flee for other districts. Welcome to the Wild West.
It took years to develop teacher contracts, each district looking to its neighboring districts to see what the next step was. What Act 10 and the court decisions have done is to hit the reset button. Bargaining provisions once seen as chains now are seen as lost lifelines.