The New Normal of Public Sector Collective Bargaining? A Wisconsin Case Study. Vicki L. Engle. City of Deming NM

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1 A WISCONSIN CASE STUDY 1 The New Normal of Public Sector Collective Bargaining? A Wisconsin Case Study. Vicki L. Engle City of Deming NM

2 A WISCONSIN CASE STUDY 2 The New Normal of Public Sector Collective Bargaining? A Wisconsin Case Study. This paper addresses Wisconsin Public Employee Collective bargaining law, beginning with a brief historical review of the National Labor Relations Act (NLRA) and private sector vs. public sector collective bargaining; the history of Wisconsin's major public sector labor laws; and a detailed review of the proposal, enactment, specific changes, and implementation of 2011 Wisconsin Act 10 and 2011 Act 32, as they relate to labor law and collective bargaining. Also addressed are employee and union reactions to the law, the use of social media, citizen and politician protests, legal challenges and decisions to date, as well as a review of other states' initiatives and the results of their efforts. The paper does not address underlying political motivations behind the passage of Wisconsin or other states laws. The paper concludes with comments by Wisconsin Human Resources/Labor Relations professionals, the impact to Wisconsin labor organizations and the author's personal thoughts on the future of collective bargaining. Full citations of references are included at the end of the paper. In the Beginning In July 1935, a new federal law was passed establishing the National Labor Relations Act (NLRA), guaranteeing private sector employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. 29 U.S.C The Act set out expected standards for the parties when meeting for collective bargaining. Among others, the NLRA explicitly exempted public sector employees; therefore, public sector employers had no statutory duty to bargain. As reviewed in the National Public Employer

3 A WISCONSIN CASE STUDY 3 Labor Relations Association, Academy I, Foundations of Labor Relations, this was due, historically, to the absolute sovereign authority concept -- the belief that government employer actions, taken on behalf of the citizens it represented, outweighed the bargaining rights of the public employees. Courts at the time agreed that bargaining agreements and strikes would impact this sovereign authority. The absolute sovereign authority concept began to erode after World War II. This was due, in part, to high inflation, the expansion of government services, and the subsequent increases in public sector employment. An additional and significant factor was the economic gains for private sector employees that resulted from the collective bargaining. The inequality of wages and fringe benefits between the private and public sector, resulted in protests, civil unrest, and striking by the government employees. As there was no federal law standardizing the public sector s duty to bargain, eventually individual states took action by enacting laws to grant public employees collective bargaining rights. Over time, these statutes, supplemented by court decisions, have formed the foundation of today's public sector employers' duty to bargain. (National Public Employers Labor Relations Association (NPELRA), 2009, pg. 2) Wisconsin In 1959, Wisconsin was the first state to enact legislation authorizing public sector collective bargaining, conferring the right to form and join labor organizations and to be represented by such an organization in wages, hours, and conditions of employment. (Najita, pg. 70) The legislation was signed into law by Governor Gaylord Nelson, a former attorney for the American Federation of State, County and Municipal Employees (AFSCME) and the first Democratic governor elected in the State of Wisconsin in 26 years. (Schneider, 2011)

4 A WISCONSIN CASE STUDY 4 The Wisconsin labor law, as written in 1959, is an example of a "Collective Bargaining Model." The Collective Bargaining Model uses the federal NLRA as a guideline or basis for the state's own statute, to define employee rights and employer/union obligations in regards to contract negotiation. This model requires both parties to come to the table as legal equals, with the purpose of bargaining mandatory subjects in good faith, with the goal of reaching agreement, and to put in writing a fair and duly negotiated agreement between the employer and the union. Mandatory subjects of bargaining usually include wages, hours of work, and employment conditions. (NPELRA, 2009, pgs. 5-6) Courts have defined "bargaining in good faith" as providing information, exchanging proposals, making concessions, and agreeing to meet and confer at reasonable times without delaying the process. Each party must have the authority to engage in negotiations and to reach an agreement. Parties may not make unilateral changes, surface bargain, impose unlawful conditions, insist on bargaining permissive or illegal bargaining subjects, or fail to execute a written agreement. Employers are also prohibited from negotiating directly with employees to by-pass the union. Failure to bargain in good faith risks an unfair labor practice charge. (NPELRA, 2009, pgs 12-13) Brief History of Significant Wisconsin Public Sector Collective Bargaining Laws The Municipal Employment Relations Act (MERA) was passed. MERA gave local government employees the right to join labor organizations and collective bargaining rights in regard to wages, hours, and conditions of employment. MERA defined municipal employers as: cities, counties, villages, towns, metropolitan sewerage districts, school districts, and other political subdivisions of the state. MERA coverage excluded city and village police, sheriffs'

5 A WISCONSIN CASE STUDY 5 deputies and county traffic officers. The statute contained prohibited practices for the parties but did not provide a way to resolve collective bargaining disputes. (MERA, Sec , ) MERA was amended to authorize legally binding collective bargaining agreements, prohibited strikes, provided for fact-finding to resolve bargaining impasses, and authorized the Wisconsin Employment Relations Board to administer the law The State Employment Labor Relations Act (SELRA) was passed giving state government employees the right to join labor organizations and engage in collective bargaining, or to refrain from such action The Municipal Interest Arbitration Law was passed to cover police and firefighters (except Milwaukee) and provided final and binding whole-package final-offer arbitration. For Milwaukee police and firefighters, it provided for conventional interest arbitration. (MERA, Sec , MERA Sec (4)(jm)) The Mediation Arbitration Law, covering local government employees other than public safety, provided for whole-package arbitration impasse procedures, combining the mediation and arbitration functions of interest arbitration. Eight years later, the mediation function of the interest arbitration provision was removed. (MERA, Sec (4)(cm)) MERA was changed to allow school boards to avoid interest arbitration on economic issues by making a qualified economic offer (QEO). This change was applicable only to covered professional school district employees required to hold a license issued by the Department of Public Instruction. (MERA, Sec (1)(nc)) (Najita, pgs 72-73) 2011 Wisconsin Acts 10 and 32, History, Introduction and Passage The 2011 Wisconsin Act 10, also known as the Wisconsin Budget Repair Bill, was proposed by newly elected Republican Governor Scott Walker and passed by the Wisconsin

6 A WISCONSIN CASE STUDY 6 Legislature to address a projected $136.7 million deficit for FY2011. (Walker, 2011) The legislation, effective June 29, 2011, impacted many areas, including the compensation, retirement, and health insurance of most public sector employees; however, it was the limiting of collective bargaining rights that came to the forefront. In the bill, Governor Walker requested the legislature to modify the existing Municipal Employment Relations Act (MERA) and the State Employment Labor Relations Act (SELRA) to alter the collective bargaining rights of public sector employees in Wisconsin, with the exception of specified public safety and protective occupation employees, i.e., police officers, fire fighters, deputy sheriff, county traffic control officers, and state motor vehicle inspectors. The resulting law did just that. Act 10 modified the existing MERA and SELRA significantly. In regard to collective bargaining and labor organizations, major changes involved the definition of represented employee classifications, subjects of collective bargaining, the collection of union dues (fair share and maintenance agreements), interest arbitration, and strikes, and the bill established a requirement for annual bargaining unit recertification. (Wisconsin, 2011, pg 895) Each of these areas will be addressed in turn below. Represented Employee Classification. The 2011 Wisconsin Act 10 created two new categories of public sector employees the Public Safety employee and the General employee. The General employee classification contains all public employees not included in the Public Safety employee classification. The Public Safety employee includes, under MERA, any municipal employee who is employed as a police officer, a fire fighter, a deputy sheriff, a county traffic officer, or a village police officer or firefighter. Under SELRA, a Public Safety employee includes state traffic patrol and state motor vehicle inspectors. Only General employees, for the

7 A WISCONSIN CASE STUDY 7 purpose of collective bargaining, are subject to the modifications in MERA and SELRA. (Wisconsin, 2011, pg 896) In an amendment passed on June 2, 2011 (2011 Act 32, also known as the Wisconsin Biennial Budget Bill), the Wisconsin Legislature added those emergency medical service (EMS) providers who were represented to the exemption for Public Safety employees. Act 32 also added transit employees to the list of employees exempt from Act 10 provisions. The transit worker exemption was added solely for monetary reasons--to ensure municipalities would not lose federal transit aid due to the reductions of collective bargaining rights. (Huebsch, 2011) (Witynski, 2011, pg. 5) Subjects of Collective Bargaining. Until the passage of Act 10, the scope of public sector bargaining subjects in Wisconsin varied, depending on whether the employee was a state or municipal employee, supervisory, or a public safety employee. Previously, under SELRA, state employee labor representatives could bargain wage rates (to include general salary schedule and temporary assignments), hours of work, and conditions of employment excluding management rights, mission goals of the agency, and merit systems. If supervisory, the scope was limited to wages and fringe benefits. Under MERA, municipal employees' scope of bargaining was limited to wages, hours and conditions of employment; municipal public safety bargaining was limited to wages, benefits and other conditions of employment. (NPELRA, 2009, pg. 12) (Wisconsin, 2011, ) The 2011 amendments to MERA and SELRA limit the right to collectively bargain, for all General employees, to the subject of total base wages, nothing more. "Total base wages" was defined to exclude any other compensation, including, but not limited to, overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay

8 A WISCONSIN CASE STUDY 8 progressions. It strictly limited collective bargaining over the total base wages increase to no greater than the percentage change in the consumer price index (CPI) as determined by the Wisconsin Department of Revenue. Where the CPI had decreased, the maximum salary level that can be bargained for would be the base amount minus the percentage decline in the CPI. Municipalities wanting to increase the total base wages of General employees more than the increase in the CPI were required to follow and use specific procedures, beginning with the adoption of a resolution specifying the amount that exceeds the CPI limit, and the municipalities must then take the issue to referendum. The increase could not be enacted until the referendum is passed by registered voters and the increase would apply to the total base wages only in the next collective bargaining agreement period. For state employees, a statewide referendum would be required. (Ruplinger (2011) pgs. 1-3) The passage of Act 32 clarified this provision to say the referendum to increase a municipal employee's base wages beyond CPI only applies in the context of collective bargaining agreements. Act 32 also provides for the Department of Revenue to calculate the average annual CPI for both state and local bargaining and states that if there is a decrease or no change in the CPI, the base pay of general municipal employees in the bargaining unit is frozen. (Huebsch, 2011) (Witynski, 2011, pg. 4) Additionally, municipal employers are expressly prohibited from collectively bargaining with general employees in any matters not permitted under MERA, and the new law states that any local ordinances that are inconsistent with the law are not enforceable. (Ruplinger, 2011, pg. 2) The 2011 Wisconsin Act 32 further repealed 2007 Act 20, "A collective bargaining agreement may, notwithstanding s 62.13(5), contain dispute resolution procedures, including

9 A WISCONSIN CASE STUDY 9 arbitration, that addresses the suspension, reduction in rank, suspension and reduction in rank, or removal of such personnel. If the procedures include arbitration, the arbitration hearing shall be public and the decision of the arbitrator shall be issued within 180 days of the conclusion of the hearing." Huebsch, 2011) (Witynski, 2011, pg. 3) Act 32 also made the choice and design of health plans for Public Safety employees a prohibited subject of bargaining. (Huebsch, 2011) (Witynski, 2011, pg. 4) Union Dues Provisions. Under the new MERA, a municipal employer is prohibited from deducting labor organization dues from the earnings of a General municipal employee or supervisor. Likewise, under the new SELRA, state employers are also prohibited from deducting labor organization dues from a General employee's earnings. Fair-share and maintenance of membership agreements between the employer and labor organizations are not permissible for represented General employees. As written, the law also states that a General employee may refrain from paying union membership dues and still remain a member of the collective bargaining unit. As indicated above, these changes affected only General employees and did not change the law as it relates to represented exempted and Public Safety employees. Fair-share agreements between the employer and these labor organizations remain effective, and all of the exempted and Public Safety employees in a collective bargaining unit with fair share agreements in place are still required to pay their share of the cost of representation. Maintenance of membership agreements between the employer and the labor organizations must continue to have dues deducted for the duration of the agreement and, dues must be deducted from the earnings of all covered employees who are hired on or after the effective date of the agreement.

10 A WISCONSIN CASE STUDY 10 Represented employee classifications, subjects of collective bargaining, and the union dues (fair share and maintenance agreements) provisions have been challenged in court and will be discussed in a subsequent section. (Ruplinger, 2011, pgs. 3-4) (Wisconsin, 2011, pg. 898) Interest Arbitration under MERA. The new law repealed final and binding interest arbitration for General employees in Wisconsin. (Wisconsin, 2011, pg. 898) For Public Safety employees, Act 32 provides that arbitrators must give greater weight to economic conditions of the municipality in interest arbitration. Arbitrators are required to address his or her consideration of this factor in the arbitration decision. (Huebsch, 2011) (Witynski, 2011, pg. 4) Strikes under MERA. Act 10, and the resulting modifications to MERA, state that nothing contained in Wisconsin labor law shall be interpreted to grant the right of any municipal employee or labor organization to strike. Such action is expressly prohibited. Accordingly, the revised MERA repealed several important provisions relating to strikes, including the option of the parties to agree to alternative forms of impasse resolution (i.e., authorizing a strike by municipal employees, or binding interest arbitration that is acceptable to the parties for resolving an impasse). Other limited circumstances under which general employees could strike were also repealed. (Ruplinger, 2011, pg. 5) (Wisconsin, 2011, pg ) Collective Bargaining Unit Annual Certification. Under prior law, a union once elected remained the certified representative of the employees unless a specified percentage of the bargaining-unit employees signed a petition for a decertification election, and a majority of those employees voted to decertify the existing union. Under Wisconsin Act 10, this was changed for General employees; instead, the new law requires an annual certification election of

11 A WISCONSIN CASE STUDY 11 the General employee labor organization. Fifty one percent of the actual employees (not voting employees) in the bargaining unit must vote to retain the representative or it is decertified effective upon the expiration of the current collective bargaining agreement. The nonrepresented employees may not be represented for a full year after the decertification. The bill outlined specific procedures, responsibilities, and timelines regarding the duties of the Wisconsin Employment Relations Commission (WERC) in their oversight and administration of the annual municipal and state representation elections for General employees, the recertification or decertification process, the expiration of collective bargaining agreements, and the collection of fees. For employees who are covered by a collective bargaining agreement that contained provisions inconsistent with the Act, the provisions are effective on the day the agreement expires, is terminated, extended, modified or renewed, whichever occurs first. (Ruplinger, 2011, pgs. 3, 7) (Wisconsin, 2011, pg ) The Protests and Recall of Governor Walker On January 3, 2011, Governor Scott Walker was sworn in as Governor of the State of Wisconsin. Early in February, the Governor introduced his Budget Repair Bill, basically stripping collective bargaining rights from public sector unions. The first large protest began at the capitol on February 14, The Wisconsin Education Association, AFL-CIO, and other labor groups contacted members and the public via websites, social media, , personal and automated telephone calls, and radio and television ads to spread their outrage at the proposed bill. The unions informed members of rallies and urged them to contact their lawmakers by providing phone and information. Unions publicly denied they were inciting members to strike, but strongly encouraged members to come to Madison to protest. AFSCME coordinated

12 A WISCONSIN CASE STUDY 12 and arranged transportation for members from around the state to converge at the capitol. The resulting around the clock protests at the State House continued for weeks. Several Wisconsin school districts closed due to teachers calling in sick to attend the demonstrations. (Stein, 2013, pgs 73-84) Estimates of the numbers of protestors in and around the capitol, during this time are as high as 100,000 people. (LeftandRightnews, 2011) Individuals at the protest, using websites, blogs and social media such as Facebook and the real-time Twitter, also spread the word on the demonstration at the state capitol building. Using hashtags such as #wiunion, #We are WI, #Not my WI, #kill the bill, and #standwithwalker to identify their posts as relating to the capitol protests, posters allowed others to search the hashtags and get up to the minute thoughts and news of what was happening at the State Capital. A Southern Illinois University at Carbondale study looking for Wisconsin protest-related hashtags estimated 90,000 twitter users had tweeted during the course of the demonstrations. (Stein, 2013, pg. 88) Demonstrations aside, the legislature attempted to continue the process. After clearing the Finance Committee, Governor Walker's bill was sent to the Senate and Assembly on February 16, On February 17, Democratic Senators, attempting to delay the vote on the bill, fled the state in protest. They remained out of the state until March 12, In order to proceed and vote on the bill, Senate Republicans ordered a conference committee to meet and approve a revised version of the bill that could be voted on without the presence of the absent Democrats. The revised bill passed the Senate on March 9, 2011, with all Democrats absent. The Assembly followed and passed the revised bill on March 10, Governor Walker signed the bill into law on March 11, 2011.

13 A WISCONSIN CASE STUDY 13 In an AFSCME issued press release dated March 9, 2011, the Union stated, "On Wednesday, Wisconsin Governor Scott Walker and Republican state senators rammed through an anti-freedom bill that stripped nurses, teachers and EMTs of their rights to collectively bargain the same rights enjoyed by just about every other Wisconsinite..." Council 24 President Bob McLinn is quoted as saying, "Governor Walker's power grab is an affront to democracy. The Voters will not stand for denying the rights of Wisconsin's public employee's and they will be held accountable for their actions at the ballot box." Brian Stafford, President of AFSCME District Council 48 stated, "Governor Walker and eighteen Republican senators handed us a setback, but we will win this war. This attack on the working and middle class will not stand and we will take back our democracy in recall elections," and Jim Garity, President of AFSCME Council 40, concludes with, "This is a sad day for democracy and for Wisconsin. But our state's nurses, teachers and EMTs will overcome. We will take back our government from the big moneyed interests and reverse this attack on worker's rights." (AFSCME, 2011) Additionally, on March 10, 2011 Democratic Assembly Minority Leader Peter Barca, and others, filed formal complaints alleging the conference committee violated the open meetings law resulting in a restraining order delaying the effective date of implementation until June 29, In addition, the first federal lawsuit, by a Wisconsin worker rights groups, is filed even before the bill is finally effective. (Stein, 2013, pgs xvi-xvii) The official recall drive began in November of Recall petitions, with more than enough required signatures, were submitted in January 2012, forcing a new election. In all, the State Government Accountability board announced 931,000 signatures had been submitted to recall Governor Walker and nearly 843,000 signatures were submitted to recall the Lt. Governor,

14 A WISCONSIN CASE STUDY 14 Rebecca Kleefisch. Other elected officials were also forced into recall elections. On March 30, 2012, the state announced all requirements for a recall election had been met. (Foxnews, 2012) Democrat Tom Barrett, the current Mayor of the City of Milwaukee, announced that he would run against Scott Walker in the June 5, 2012 election. Two debates and much campaigning later, Governor Scott Walker, won the recall election by a bigger margin than that in his initial candidacy of His Lieutenant Governor and three Republican senators also retained their elected positions, although the Democrats took the Senate majority. (Stein, 2013, pgs. xix, 290) It is interesting to note, that in the closing weeks of the campaign, the issue that began the recall initiative--reform of public employee unions--was no longer the focus of the opponents' agenda. The focus had shifted to the economy, jobs, women's issues, and an investigation of Walker's aides during a previously held elected office in Milwaukee. Steve Huntley, of the Chicago Sun Times, speculates the reason for this change of focus was that, by the time of the recall election, Walker's collective bargaining reforms were proving to be successful and that the taxpayers had grown weary of financing overly generous benefits previously bargained for and provided to public sector employees. (Huntley, 2012) Court Challenges/Points/Decisions Wisconsin Education Association Council v. Walker This case was first filed in the United States District Court for the Western District of Wisconsin. It challenged: (1) The law s creation and treatment of two new classifications of public employees: General and Public Safety. (2) Specific provisions impacting only General employees, including:

15 A WISCONSIN CASE STUDY 15 elimination of mandatory dues and fair share fees, and stripping of all collective bargaining rights, except on total basic wages the requirement for annual recertification by an absolute majority of union members (as opposed to conditional or member-driven recertification by a simple majority of those actually voting) the prohibition on the voluntary withholding of union dues from a general employees paycheck. The plaintiffs, relying on protections afforded by the Equal Protection Clause, argued there is no rational basis for the General and Public Safety classifications, other than to reward the unions who publicly and monetarily supported Governor Walker in his 2010 election campaign. They further asserted under the First Amendment that the prohibition on automatic dues withholding for members of General employee unions was unconstitutional. Defendants responded that it was legitimately necessary to designate and exempt those under the Public Safety classification to prevent disruption of essential government services. The United States District Court for the Western District of Wisconsin defined the sole issue as to "whether the State's dismantling of public union rights in piecemeal fashion implicates constitutional protections." On March 30, 2012, District Judge William M. Conley issued his decision. He found that the plaintiffs did not meet their burden with respect to the Equal Protection challenge to the principal provisions limiting the collective bargaining rights of General employees and their unions; however, he did not find a rational basis for picking and choosing from among the public unions--those that must recertify annually with a majority of members to remain in existence, or those that are entitled to automatic dues deduction under the First Amendment.

16 A WISCONSIN CASE STUDY 16 The court granted defendants "judgment on those claims challenging restrictions on the collective bargaining rights of general employee unions on Equal Protection grounds, " and, granted "plaintiffs summary judgment on their claims challenging annual, absolute majority union recertification and denial of voluntary union dues deductions as to general employee unions on Equal Protection and First Amendment grounds. " The Court reinstated automatic dues deduction for all members of public unions effective May 31, 2012, and prohibited Act 10's annual, mandatory recertification by absolute majority on the General employee unions. Defendants filed a notice of appeal to the Seventh Circuit Court of Appeals ( , , & ). Arguments are heard on September 24, 2012, by Circuit Judges William Bauer, Joel Flaum and David Hamilton. Judge Flaum, in a 2-1 majority decision dated January 18, 2013, reviewed the district court decision and stated, "We now uphold Act 10 in its entirety." The court found that Act 10 does not violate the US Constitution. The court upheld the district court's ruling that the collective bargaining provisions are legal. The ruling reversed the district court's order repealing the annual recertification provision and the reinstatement of the payroll deduction requirement. Judge Hamilton dissented on the payroll deduction issue. Governor Walker responded to the decision by saying, "Today's court ruling is a victory for Wisconsin taxpayers. The provisions contained in Act 10, which have been upheld in federal court, were vital in balancing Wisconsin's $2.6 billion budget deficit without increasing taxes, without massive public employee layoffs, and without cuts to programs like Medicaid." In contrast, United Wisconsin Executive Director Lisa Subeck, response was, "We are extremely disappointed by the decision of the 7 th Court of Appeals which upheld Scott Walker's anti-worker Act 10 legislation. Act 10 was proposed and passed as a blatantly political

17 A WISCONSIN CASE STUDY 17 maneuver to tip the scales in favor of Republican interests. Today's decision tarnishes Wisconsin's proud history as a pioneer of workers' rights. It is a slap in the face to our public servants and the workers who fought so hard for the right to collectively bargain. Today our state has taken a giant step backward." AFSCME Wisconsin's statement on the decision, read "AFSCME members are disappointed by this decision. While we review the details and weigh our options with our leaders across the state, we want to make clear that the fight for worker rights continues. Federal courts are just one of the avenues we are using in our fight to give workers a voice. We will continue using every method and avenue open to us and will not rest until workplace rights are restored for all public service employees." (Hague, 2013) As of August 2013, no appeal has been filed to this decision. Madison Teachers, Inc. v. Walker This case challenged the constitutionality of statutory changes made by 2011 Wisconsin Acts 10 and 32. Specifically, it challenged the changes made to collective bargaining, payroll deduction of dues, and contributions to pension benefits with respect to municipal employees including local governments, school districts and special government districts. The court was also asked to decide if Act 10 was enacted in violation of the Wisconsin Constitution, which limits the scope of special sessions of the legislature. September 14, 2012, 4 th District Circuit Court Judge Juan B. Colás found that Act 10 was within the scope of the governor's special session proclamation and therefore not in violation of the Wisconsin Constitution. However, he granted summary judgment in favor of the plaintiffs in the issues identified and declared that all of the challenged provisions violated the Wisconsin and/or the United States Constitution. Judge Colás declared the applicable sections of Act 10 to

18 A WISCONSIN CASE STUDY 18 be null and void. Defendants filed an appeal to the District IV Court of Appeals on September 18, Judge Colás subsequently issued an amendment dated October 10, 2012, clarifying but not changing the end result of the decision, and denied a request for a stay pending appeal on October 22, In April 2013, Madison Teachers Inc. and Public Employees Local 61, AFL-CIO filed a lawsuit asking the Circuit Court to issue an injunction to block the writing of administrative rules that would implement portions of the law that the court previously found to be null and void. On April 25, 2013, the 4 th District Circuit Court, citing the continuing uncertainty and confusion about the law's status, issued a statement urging "the Supreme Court to accept this certification and put these legal issues to rest." The Supreme Court has yet to determine whether to take the case directly or send it back to the appeals court for a ruling. (Associated Press, 2013) Other States Wisconsin is not the first or only state looking at limiting public sector bargaining. Governor Scott Walker has publicly stated that he took his ideas from Indiana Governor Mitch Daniels. Walker knew and admired Mitch Daniels, saying "It's not like we dreamed this up. It was Mitch Daniels. It came from Mitch Daniels." In 2005, on his second day in office, Governor Daniels rescinded collective bargaining for public employees in his state. He could take action unilaterally because collective bargaining rights had been granted in 1989 through an executive order, and therefore he did not need approval from legislators. Since Governor Daniels did not need approval by legislators, and collective bargaining had not been in place for nearly as long, the State of Indiana did not have the massive protests that occurred in Wisconsin.

19 A WISCONSIN CASE STUDY 19 In 2005, Indiana had 16,408 union dues paying members in public-sector employment; in 2010 there were only 1,490. (Stein, 2013, pgs ) In March 2011, Ohio Governor John Kasich signed Senate Bill 5 into law. (Naymik, 2011) The law applies to all state and local workers including police and fire department employees. The bill limited certain subjects of bargaining, reduced spending on public employees, prohibited strikes, and cut workers health and pension benefits. A difference between Wisconsin and the Ohio is that Ohio has a referendum process allowing citizens to vote to repeal laws. The effort began immediately to collect signatures to take the law to a referendum vote. Nine hundred fifteen thousand valid signatures were submitted forcing a November 2011 referendum vote. (Guillen, 2011) The law was overturned by a 62% majority vote and repealed. (StateImpact, n.d) In February 2012, the Indiana Governor Mitch Daniels signed Public Law 2, extending "right to work" provisions to private sector employees. The law made it illegal to require an individual to join or remain a member of a labor organization, or to pay dues or fees as a condition of employment. Previously, the right to work law had only applied to public sector school employees. (National Conference of State Legislators (NCSL), 2012) On December 11, 2012, Michigan Governor Rick Snyder signed two laws establishing Michigan as a right to work state. The laws prohibited mandatory payments to unions as a condition of employment for both public (MI HB 4003) and private sector (MI SB 116) employees. (National Conference of State Legislators (NCSL), 2012) (Stein, 2013, pg 278) These are just a few of the states that have enacted law to scale back public sector collective bargaining rights, wages and benefits in the past several years. None were to the extent of Governor Walker's law and have met with mixed results.

20 A WISCONSIN CASE STUDY 20 Thoughts of Wisconsin Labor Relations Professionals. Patrick W. Glynn, 2013 Wisconsin PELRA President and HR Director for Calumet County, Wisconsin, stated during a personal telephone conversation that the new labor laws are very much a positive move for the employer. In the past, the unions basically had the bargaining processes stacked in their favor, and would not negotiate changes without a quid pro quo; thus, the same frustrations were encountered each time they went to the table. The new laws allowed Calumet County to end long standing negotiated provisions that were costly, inefficient, or outdated -- such as time off counting as time worked, or the requirement that an employer must allow a highway department employee to work at least 8 hours each scheduled workday -- even if the employee had met the 40-hour workweek earlier (i.e., during snow emergencies) or even if there was no work to be done thus causing costly overtime expenses, On the employee side, there were cuts made and the affected general employees were required to pay more towards their retirement and benefits, thus impacting morale. However, the Calumet County Deputy Sheriff's Association was not affected by the law which caused its own morale issues within the organization. The Jailer/Dispatcher union has recertified and is in place, but with very limited bargaining rights, and in situations where an agreement had not been reached, the employer's last best final offer can be implemented. Other unions, specifically AFSCME, did not recertify, claiming that the "Governor's rules" were overbearing and that bargaining over restricted base wages were not worth their effort. Mr. Glynn personally felt the law was, at least in part, political and that, in the eyes of many, the cutting off of the dues deduction was the most important item in the law. This, with Voter ID and re-districting, curtailed lobbying and set the stage for the Republicans to retain political control. Mr. Glynn said he is fully aware that political winds change and feels expanded

21 A WISCONSIN CASE STUDY 21 collective bargaining rights will come back at some point; therefore it is imperative that management immediately get things where they need to be and begin to implement modern HR systems. Lastly, Mr. Glynn commented on the court decisions saying he believes that, thus far, the law has been held to be constitutional at the higher court levels (WEAC v. Walker), but concedes that the other ongoing lawsuits could still produce an alternate result. Joyce M. Roling, Personnel Director, Grant County, Wisconsin, in a personal dated February 18, 2013, provided the following: "While not popular for employees, Act 10 and 32 allowed public employers to begin to manage benefits and wages in a way to maintain mandated services while keeping costs down. Even after Act 10, wages and benefits in the public sector are in-line and even more than some private sector firms. For our county, it allowed us to maintain our staffing and keep employees employed, which not only helps our economy, but allows us to maintain our level of services we provide. Furthermore, Act 10 and 32, allowed some counties to withdraw from the depths of debt and rebuild to boost their local economy. However, with the implementation of Act 10 and 32, public employers received the difficult task of rebuilding morale, which plummeted to all-time lows. Current Status Implementation of 2011 Wisconsin Acts 10 and 32 has reduced union power. The State of Wisconsin has stopped collecting union dues from employees' paychecks, thus forcing the unions to collect their own dues. As employees are no longer required to pay a fair share for representation, union coffers are significantly reduced. Unions have had to lay off workers, set up payment websites, and solicit members. In addition, as unions are required to recertify on an annual basis, many of the major state employee unions have declined to hold votes and lost

22 A WISCONSIN CASE STUDY 22 official status. Decertified unions remain unrecognized while court appeals continue. As of 2012, only six small Wisconsin unions for state employees were officially intact. Statewide, more than 200 public employee unions at the local level decided to hold elections and nearly 90 percent of them succeeded in keeping their official status. (Stein, 2013, pg. 270) Conclusion In conclusion and political motivations aside, Governor Walker's move to change the public sector collective bargaining law he viewed as costly and detrimental for the State of Wisconsin has shown to be fiscally productive and will be an impetus to other states. The changes to the collective bargaining law in Wisconsin and the extreme protests that followed were due in part to the long history of public sector labor organizations in the state. Even so, the state has survived the protests, the reforms are working and the budget deficit has been replaced with a healthier economy. The public sector unions, now having to collect their own dues--from only those that want to pay--have significantly less money coming in, and as a result, significantly less power in the state. Annual requirements to recertify and restricted bargaining topics have unions walking away instead of spending the time and money to recertify. In his 2013 State of the State address, Governor Walker notes, "Two years ago, when I first stood here as your new governor, Wisconsin was facing a $3.6 billion budget deficit, property taxes had gone up 27 percent over the previous decade, increasing every year, and the unemployment rate was 7.8 percent. Today, Wisconsin has a $342 million budget surplus, property taxes on a median valued home went down in the last two years, and the unemployment rate well it's down to 6.7 percent....the reforms we enacted over the past two years saved school districts hundreds of millions of dollars and allowed each district to hire based on merit

23 A WISCONSIN CASE STUDY 23 and pay based on performance. Our reforms also gave schools and local governments flexibility to make management choices to improve their communities, while saving money." Other states are beginning to take small steps and pieces of Wisconsin collective bargaining law to their legislatures a little at a time perhaps due to fear of the protests or referendums to repeal. The trend however, indicates collective bargaining reform will remain in the news. Governor Walker has been proactive in media and with other politicians, promoting the benefits of reform most recently as host to the National Governor's Association conference in August and assisting and advising other states on Wisconsin's progress. The future of collective bargaining is changing -- for better or worse, only time will tell. Vicki Engle HR Specialist, City of Deming PO Box 706 Deming NM vengle@cityofdeming.org

24 A WISCONSIN CASE STUDY 24 REFERENCES AFSCME (2011, March 9) Wisconsin Public Employees: Ramming through anti-freedom bill "An affront to democracy, Retrieved 8/24/13, from Associated Press (2013, April 25) GazetteXtra. Retrieved May 4, 2013, from Fox News Insider (2012, June 5) Wisconsin recall election timeline. Retrieved January 20, 2013, from Guillen, J. (2011, July 21) Ohio's collective bargaining law will be on the November ballot, The Cleveland Plain Dealer. Retrieved May 18, 2013, from Hague, B. (2013, January 18) Federal court upholds Act 10 Wisconsin Radio Network, Retrieved August 24, 2013, from Heubsch, M. (2011, June 30) [Wisconsin Department of Administration letter to local officials] Retrieved on August 17, 2012, from Huntley, S. (2012, July 7) Wisconsin gov's collective-bargaining reforms have been resounding success. Chicago Sun Times. Retrieved August 17, 2012, from LeftandRightNews (2011, February 28) Wisconsin protest timeline and facts. Retrieved on January 20, 2013, from Madison Teachers, Inc., et. al. v Scott Walker, Governor of Wisconsin, et. al. 11CV3774. Decision and Order (2012, September 14) (State of Wisconsin Circuit Court, Dane County Branch 10, Judge Juan B. Colis) Retrieved August 17, 2012 from Madison Teachers, Inc., et. al. v Scott Walker, Governor of Wisconsin, et. al. 11CV3774. Amendment Clarifying Decision (2012, October 10) (State of Wisconsin Circuit Court, Dane County Branch 10, Judge Juan B.

25 A WISCONSIN CASE STUDY 25 Colis) Retrieved February 28, 2013, from 12.pdf Madison Teachers, Inc., et. al. v Scott Walker, Governor of Wisconsin, et. al. 11CV3774. Denial of Stay (2013, March 12) (State of Wisconsin Court of Appeals, District IV, Judge Juan B. Colis) Retrieved February 28, 2013, from Najita, J.M. & Stern, J.L. (Eds) (2001) Collective bargaining in the public sector: The experience of eight states. Armonk, NY: M.E. Sharp, Inc. Naymik, M.. (2011, March 31) Gov. John Kasich signes Senate Bill 5 as supporters and opponents gear up for hughe referendum, The Cleveland Plain Dealer. Retrieved August 24, 2013, from National Archives and Records Administration (n.d.) National Labor Relations Act (1935), Retrieved February 2, 2012, from National Conference of State Legislatures (n.d.) 2012 Right to Work Legislation, Retrieved May 4, 2013 from National Public Employers Labor Relations Association (NPELRA) (2009) Academy I, Good Faith and Mandatory Bargaining Subjects, The Foundation of Labor Relations. Newsmax Wires (2011, March 31) Ohio Gov. Kasich signs controversial union bill. Retrieved May 18, 2013, from Ruplinger, J.K., Rose, L., & Schmidt, D. (2011, May 9) 2011 Wisconsin Act 10 [January 2011 Special Session Assembly Bill] Budget Adjustment Act. Wisconsin Legislative Council Act Memo. Retrieved August 17, 2012, from Schneider, C. (2011, February 23), The partisan origins of public sector collective bargaining Blog: The corner, National Review Online. Retrieved August 17, 2012, from StateImpact (n.d.) Ohio's SB 5, Explained. Retrieved May 18, 2013, from Stein, J. & Marley, P. (2013) More than they bargained for: Scott Walker, unions and the fight for Wisconsin. Madison, WI: The University of Wisconsin Press.

26 A WISCONSIN CASE STUDY 26 Walker, Scott (2013, May 15) 2013 State of the State: Bold vision and bright hope for the future. Retrieved May 4, 2013, from Walker, Scott (2011, February 07) State of Wisconsin needs fiscal repair. Retrieved January 20, 2013, from 1d53db680d39 Wisconsin Education Association Council, et. al., v. Scott Walker, Governor of Wisconsin, et.al. 3:11-cv wmc Document 107. Decision (2012, March 30) (US District Court for the Western District of Wisconsin, Judge William M. Conley. Retrieved August 17, 2012, from Wisconsin Education Association Council, et. al., v. Scott Walker, Governor of Wisconsin, et.al. 3:11-cv wmc Document 107. Denial of Motion to Stay (2012, April 27) (US District Court for the Western District of Wisconsin, Judge William M. Conley. Retrieved August 17, 2012 from Wisconsin Education Association Council, et. al., v. Scott Walker, Governor of Wisconsin, et.al. 3:11-cv wmc Document 107. Clarification of Decision (2012, May 18) (US District Court for the Western District of Wisconsin, Judge William M. Conley). Retrieved August 17, 2012 from Wisconsin Education Association Council, et. al., v. Scott Walker, Governor of Wisconsin, et.al , & Decision (2013, January 18) (US Court of Appeals for the Seventh Circuit, Judges Bauer, Flaum, and Hamilton). Retrieved January 18, 2013 from / /data/4/-/ojmrrbz/-/Act-10-upheld-decision.pdf Wisconsin, State of (2011) Summary of provisions of 2011 Act 10. Retrieved August 17, 2012, from Witynski, C. (2011) state budget makes major changes affecting municipalities. Retrieved August 17, 2012, from

27 A WISCONSIN CASE STUDY 27 Other References Wisconsin s Municipal Employment Relations Act (MERA) and State Employee Labor Relations Act (SELRA) are available here: Wisconsin Legislative Documents Search page: