Wisconsin union fight rumbles toward state Supreme Court

The Wisconsin judge who last year declared the state’s controversial collective bargaining law unconstitutional refused this week to issue an injunction barring the state from implementing the law until the Wisconsin Supreme Court casts a deciding vote on the matter, likely next year.

The law was hailed by its proponents as a money-saver for the state but decried as an overt effort to bust public unions, or at the very least to weaken their power at the negotiating table.

Dane County Circuit Judge Juan Colás ruled last year in favor of Madison Teachers Inc., a public union, and another union representing Milwaukee employees. Judge Colás said that Act 10 – the law signed by Gov. Scott Walker (R) in 2011 that eliminates collective bargaining for most public workers – violated worker rights to free speech, free association, and equal representation under the law because it resulted in capping worker raises, but had no effect on their counterparts who were not in unions.

The state appealed and this summer the state Supreme Court announced it will take the case in the fall.

Both unions in that case asked Colás to widen the language in his ruling so that it applied to all unions representing teachers and local workers in the state. He agreed in principle, but this week cited a technicality in declining to issue an injunction that would ultimately halt the law until the high court verdict. His reason: The other unions were not parties to the case.

“Where Judge Colás was novel in his ruling was in the distinction he made between unionized workers in general and non-unionized workers. So [Act 10] is not favoring one union over another but rather is favoring non-unionized workers against unionized in general – that went further than existing case law,” says Edward Fallone, a constitutional law professor at Marquette University Law School in Milwaukee.

Since Act 10 became law, it has been the subject of numerous lawsuits on the county, state, and federal level. The state Supreme Court decision is expected to end to the legal skirmishes.

“We are getting toward the end of the string on litigation, and the real question will be shifting from having people stop talking about whether or not it is constitutional and start talking about whether it’s done any good for the state,” Mr. Fallone says.

Already, union membership is dropping in Wisconsin. In 2011 and 2012, about 13 percent of the state’s 207 school districts and 39 municipal and state units were decertified. Unionstats.com, which collects union membership data, reports that government union membership in Wisconsin fell from 50 percent in 2011 to 37 percent last year.

Many say this is a direct result of Act 10, which requires unions to recertify with the state every year, a requirement that increases the chances for unions to lose the right to continue. For example, three teachers union contracts in Janesville, Milwaukee, and Kenosha came up for renewal this summer; Kenosha was not able to make the late August deadline, which made it lose its certification, and therefore their bargaining power for wage increases.

Walker and his supporters say the labor reforms have saved taxpayers nearly $2 billion since 2011. They are also bolstered by a federal court decision last week – in a case separate from Colás's – that ruled Act 10 does not infringe on employees’ rights.

In that case, US District Judge William Conley threw out a lawsuit that challenged the constitutional merits of Act 10, saying that under the law, “general employees remain free to associate and represent employees and their unions remain free to speak; municipal employers are simply allowed to listen.”