Things have been hopping lately on the employee handbook/collective bargaining front. The following questions and answers, organized into three chapters, are my attempt to summarize recent developments in a roughly chronological manner, add a few digressions on the applicable legal procedures, and explain the Madison School Board’s decision to enter into negotiations on possible new collective bargaining agreements for the 2013-2014 school year.
Chapter One: The Employee Handbook Process
Two weeks ago – remember way back then? – what was the School Board’s plan for dealing with the expiration next June of its collective bargaining agreements (CBAs) with its teachers and other staff?
We were beginning the Act 10-mandated process most school districts in the state have already completed of developing an employee handbook setting out the workplace policies and practices that are currently addressed in our CBAs.
What progress had you made?
The superintendent and Board had worked together to come up with a plan for developing our handbook. The Board approved the plan at our meeting on Monday, September 17, but agreed to hold it in abeyance until the dust settles a bit on the legal landscape.
What does the plan call for?
The first step in the plan is a survey inviting our teachers and staff to identify the workplace issues that are most important to them. Next, taking the survey results into account, the school district administration is to bring to the Board a list that sorts the various agreements set forth in our CBAs into three categories. These consist of the policies or practices that the administration recommends: (1) be carried forward as Board policy without change; (2) be addressed as Board policy but not until they have been reviewed and possibly changed; and (3) not be carried forward as Board policy.
The Board would then identify the policies or practices from the list that it thinks would benefit from discussion. Those would then be submitted to designated working groups for collaborative exploration intended to culminate in consensus agreement on recommended approaches to the policies or practices.
Who’s included in these work groups?
The working groups would consist of an Oversight Group and individual Advisory Groups for each of the seven bargaining units with which we have CBAs. The Oversight Group would deal with issues common to all employees. It would be chaired by the superintendent and include members nominated by each bargaining group as well as three building principals and up to five other administrators, including the chief of staff to the superintendent.
The Advisory Groups would be made up of three members selected by the applicable bargaining unit and up to three administrators, except that the teacher group would include six teachers (three selected by MTI and three selected by the district to help ensure that the members are broadly representative of the teacher population in terms of work responsibilities and diversity) and up to six administrators.
What would the working groups do?
Within the framework established by seven guiding principles set forth in the plan, the working groups would get together in open meetings, discuss the issues referred to them, and work toward reaching consensus on concepts for the employee handbook. When they had taken their discussion as far as they can, the groups would forward to the school board descriptions of their areas of consensus agreement and identify any unresolved issues.
What happens after the working groups are finished?
The School Board would have the final say on the handbook content and be the final decision-maker for any unresolved issues.
Chapter Two: Judge Colas’ Ruling
What’s the current status of the employee handbook plan?
The landscape shifted on Friday, September 14, when Judge Colas issued his ruling on the lawsuit brought by MTI and a Milwaukee union challenging the constitutionality of several provisions of Act 10. As everyone knows by now, the court agreed with several of MTI’s claims.
What did the court decide?
The court addressed a number of issues. Most relevant to us, it ruled that the state is not obligated to provide collective bargaining rights to its employees. But if it does, it cannot place limits on the scope of the bargaining. This part of the ruling is quite broad and appears to have sweeping implications for public employee collective bargaining.
What parts of Act 10 did the court throw out?
The court struck down several provisions of Act 10. The ones that most affect the school district are Act 10’s restricting collective bargaining only to wages and, in the absence of a referendum, prohibiting bargained wage increases above the cost of living. Of lesser significance to us, the court also struck down restrictions on “fair share” union dues agreements, the prohibition on payroll deductions for union dues, and the imposition on unions of onerous certification and recertification requirements, as well as some provisions that only pertained to Milwaukee. Other significant changes to collective bargaining imposed by Act 10 were unaffected by the ruling.
Does Judge Colas have the last word on the constitutionality of the law?
No. No surprise, the Attorney General has filed a notice of appeal of the ruling. The appeal goes to the District IV court of appeals, headquartered in Madison. (The two most recent additions to the five-member court are former Dane County DA Brian Blanchard and former supreme court candidate Joanne Kloppenburg). The appeal will be decided by a randomly-selected panel of three of the five judges.
What deference will the court of appeals show to Judge Colas’ ruling?
Essentially none. Since Judge Colas’ decision did not depend on the resolution of any disputed facts, the court of appeals will review the case on what is called a de novo basis. This means that the court gives no deference to Judge Colas’ decision, except to the extent that the judges find his reasoning persuasive. In other words, from the perspective of the appellate court, it will approach its review of the decision the same way it would if Judge Colas had issued a ruling upholding every provision of Act 10. The circuit court decision serves primarily as the means by which the case reaches the court of appeals.
How does the Wisconsin Supreme Court figure into this?
The normal course is for the losing party at the court of appeals to petition the supreme court to review the court of appeals decision. The supreme court has discretion whether or not to consider the appeal and denies most petitions it receives. If it declines to hear the case, the court of appeals decision becomes final. If it accepts review, then the appeal goes up to the supreme court. The parties submit briefs, the court holds oral argument, and then issues a decision.
Can the supreme court get involved any other way?
Yes. If it wishes, the supreme court could grab the case for itself before the court of appeals issues a decision. This could happen in one of three ways. The supreme court could grant a petition by the Attorney General or any other party to bypass the court of appeals; it could grant direct review upon what is called “certification” from the court of appeals prior to the court of appeals hearing and deciding the matter; or the court could simply act on its own and decide to review the matter directly.
Will the court of appeals or supreme court overrule Judge Colas’ ruling?
That’s for the courts to decide. I can’t predict what the courts will do, and neither can anyone else.
There has been some talk that the case could end up in federal court. How could that happen?
That could only happen if, once the state court proceedings are final, one of the parties files a petition for certiorari with the U.S. Supreme Court. The Supreme Court decides what cases the Justices want to hear and the vast majority of certiorari petitions are denied.
Wasn’t there a similar case filed in federal court in Madison?
Yes. It was a challenge to Act 10 filed by other unions that raised some overlapping issues with the MTI lawsuit. District Court Judge Conley issued his decision in this case last spring, generally upholding the law but, like Judge Colas, striking down the provisions of Act 10 that forced the unions annually to recertify by an absolute majority vote of union members, and that prohibited automatic deductions of union dues from employee paychecks. Judge Conley’s decision is on appeal to the U.S. Court of Appeals for the Seventh Circuit in Chicago. Oral argument was held before the court of appeals on Monday, September 24. A written decision will follow in a matter of months.
What happens if the state and federal courts of appeals reach different conclusions about the constitutionality of Act 10?
The federal Seventh Circuit decision will not be binding on the Wisconsin state courts. It is conceivable, though unlikely, that the Seventh Circuit decision and the final state court decision, whether by the court of appeals or the supreme court, could reach inconsistent conclusions about the constitutionality of provisions of Act 10. If this were to happen, the chances would be increased that the U.S. Supreme Court would take up the case.
Has Judge Colas’ decision taken effect?
Yes, and at the moment, the provisions of Act 10 that the court struck down are no longer in effect.
What’s this about a stay?
The Attorney General has filed a motion with Judge Colas for a stay of his order. A stay would postpone the enforcement of the order until the appeals process has run its course, which will take a minimum of several months. MTI has until September 26 to file a brief opposing the stay request, and the state may file a reply by September 28. Judge Colas will then prepare a written decision on the stay request, which will be issued no earlier than the first week of October.
Judge Colas just ruled against them. Why would the Attorney General seek a stay from him rather than from the court of appeals?
An application for a stay pending appeal generally must first be brought in the circuit court. A ruling on the application involves the exercise of discretion by the trial judge. If Judge Colas denies a stay, the state may then seek review of that decision in the court of appeals. Unlike his ruling on the merits, a decision by Judge Colas on the stay request would be reviewed with deference in the court of appeals and would only be reversed if the court concluded that Judge Colas had abused his discretion in denying the stay.
What happens if a stay is issued?
If a stay is ordered, then matters essentially return to where they were prior to Judge Colas’ ruling, except that MTI’s lawsuit will have moved from the circuit court to the court of appeals.
Chapter Three: Collective Bargaining Redux
What was MTI’s response to its prevailing before Judge Colas?
MTI (which represents five of the school district’s bargaining units) and AFSCME (which represents the other two) have both requested that the school district take advantage of Judge Colas’ ruling and begin at once to engage in collective bargaining. Recommendations that we do so were communicated to School Board members in a number of ways and by quite a number of people.
What’s the School Board’s response to the requests to start bargaining?
The Board discussed MTI’s request during a closed meeting on Monday. As we announced at the start of our open meeting later that evening, the Board decided that, so long as Judge Colas’ ruling remains in effect, we would agree to bargain on a possible new one-year agreement (the longest term that is possible under Act 10) to take effect on July 1, 2013. We also said that we would act as expeditiously as possible, consistent with our responsibilities to the school district and our students.
What does that mean?
Basically, it means that we will first consider what changes we might like to see in our CBAs. Once we have settled on our position, we will engage in bargaining. We will act as quickly as we responsibly can to see if we can reach an agreement through bargaining that accomplishes our goals, but this is a process that is unlikely to be completed in a matter of days.
Didn’t the City of Madison and Dane County already start and successfully finish negotiations of new collective bargaining agreements with AFSCME to take effect after their current agreements expire?
Yes.
Why can’t you act as quickly as the City and County did?
Our situation isn’t comparable to the City and County. I cannot find a copy of Dane County’s new agreement with AFSCME, but Brenda Konkel has posted the text of AFSCME’s proposed agreement with the City. It carries forward the substantive terms of the existing agreement, except that it provides the City “the right to reduce base wages by a maximum of 3% effective March 16, 2014” and “utilize alternative options for health insurance plan design, effective January 1, 2015.” The City also “agrees to work cooperatively and utilize the meet and confer process with AFSCME Local 60 to avoid layoffs,” possibly through furlough days. And that’s it.
I suspect that when the school district and MTI commence collective bargaining, both sides will likely be looking for agreements on a broader range of issues than were addressed in AFSCME’s agreements with Madison and Dane County.
Board members hold a range of views on these issues. Speaking for myself, I am not in favor of just signing off on whatever is in the current MTI teachers agreement (which is about 170 pages long, not counting a number of memoranda of understanding (MOUs) on additional topics). Before we enter into bargaining, I think we need to give thoughtful consideration to the extent to which the provisions of the current CBAs are consistent with our goals of promoting student learning, closing the achievement gap and attracting and retaining a skilled and diverse workforce. To the extent that we feel adjustments are necessary, we should pursue them in our bargaining.
What will happen if Judge Colas’ order is stayed before the collective bargaining process is completed?
If Judge Colas’ order is stayed prior to our completing the collective bargaining process, then we’ll shift back to the employee handbook approach, as we must. Either way, we’ll plan on having collaborative discussions about how we can best achieve our goals of enhanced student learning, closing the achievement gap, and attracting and retaining a skilled and diverse workforce in ways that are fair to our teachers and staff.
What happens if your bargaining culminates in new 2013-14 CBAs, but Judge Colas’ ruling is then reversed on appeal and all provisions of Act 10 are reinstated?
I don’t know. There is no clear answer. Plausible arguments can be made both that the new CBAs would remain effective and that they would be rendered nullities. The lawsuits could just keep coming.
So, what’s in store in chapter four?
Who knows? This is new territory for all of us. It may not engender confidence to say that we’re all just kind of making it up as we go along, but that’s not far from the truth.
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