So now we start our evaluation of the 'collective bargaining' section of the bill. If you've been paying attention to the number of pages I 'skipped' for this section in previous posts, it seems like a large portion of the bill. However, many of the pages of this portion of the bill repeat the same general information, it is simply that there is a portion that covers general public employees, a section that covers public safety employees, and a section that cover school employees. For brevity, I will simply note any significant differences between the 3 'classes' as they occur.
It is necessary to have several terms defined at the beginning, as they will reoccur throughout this section, so bear with me as this post is longer than previous posts. As with all of my sections, if you have an alternative interpretation of a section, please feel free to let me know. But again, if your contribution to the conversation is simply statements like 'Union Power' or “Unions protect bad workers”, I will not guarantee that I will approve the comment. But, if you have some documentation or experience that you feel sheds light on a possible outcome I haven't considered, let me know.
I'll admit up front that this is going to be a difficult section for me to cover. I am a past (private) union member, my husband is currently in a (private) union, and my sister and other family members are also union members. This is also the portion of the bill that has gotten the most press coverage and that many people have a strong opinion either for or against. My goal here is to try to limit my bias as much as possible and simply outline what the bill states are requirements of collective bargaining, what is eligible to be bargained, and how the bill changes/impacts union membership, certification, and dues.
“Collective bargaining” is defined in Section 163 111.02(3) as “the negotiation by an employer and a majority of the employer’s employees in a collective bargaining unit, or their representatives, concerning representation or terms and conditions of employment of such employees, in a mutually genuine effort to reach an agreement with reference to the subject under negotiation”. In very general terms, it means that the employees and the employer gather together to discuss various terms of employment such as wages, benefits, working conditions, safety, etc. This bill, as I will show later, limits the topics allowed to be bargained to simple wages. This loss of voice is a significant concern for many of the people opposed to this bill. This is not the forum to discuss the creation of unions or the changes they helped bring to work environments (although I hope to cover that in a later post), but it can be convincingly argued that unions had a lot to do with the creation of many labor protections we now take for granted, such as the 40-hour work week, child labor and minimum wage laws, and many safety protocols.
A 'collective bargaining unit' is defined in Section 163 111.02(3) as “all of the employees of one employer, employed within the state”, although a group can vote collectively to become a separate bargaining unit. To maximize efficiency, the bill requires that a commission review may re-integrate separate bargaining units as long as the change is agreeable to “all parties affected in any way thereby”. I'll admit to being curious how they intend to define/determine who is impacted by the change, as an argument could be made for the entire community served by the bargaining unit could be impacted, thereby requiring a referendum to people who are neither the employees of the agency nor the employer to have a direct impact on the agency itself. This could be good or bad, the results would be unpredictable at best. The bill does stipulate that any all-union agreements (meaning that an employee hired for a position that is currently part of the collective bargaining unit is automatically a member of the union) remain in effect, but as will be pointed out later there is another stipulation that makes the fact that all-union agreements stay effective essentially pointless.
The definition of employer is fairly straight-forward in this bill. An employer is someone who “engages the services of an employee, and includes a person acting on behalf of an employer within the scope of his or her authority, express or implied.”
A strike is defined in section 183 as “any concerted stoppage of work by employees, and any concerted slowdown or other concerted interruption of operations or services by employees, or any concerted refusal of employees to work or perform their usual duties as employees, for the purpose of enforcing demands upon an employer.” Disregarding the unnecessary inflammatory 'enforcing demands' language, I am interested to see how this definition is interpreted to apply to activities the employee regularly does that are not explicitly outlined in the contract or work requirements of the employee.
For example, teachers often use personal time to write letters of recommendation for college applications for students, even though this is not an activity that they are paid for nor is it outlined in their current job requirements. However, stating that a strike includes 'usual duties' could be interpreted to mean that if teacher refuse to provide this additional service, it would be considered a strike activity. That is concerning to me, as employees should not have to fear retribution for withholding services they are not reimbursed for. Also, strikes are expressly prohibited under section 221 of the bill, leaving the potential for employees to be removed from their position if the engage in ANY activity that could meet the definition of a strike under this bill. Again, clarification of situations like my teacher example need to be addressed to assess the full potential of outcomes with this definition.
Although other portions of the bill I have covered dealt indirectly with collective bargaining by outlining the (health and retirement) benefits that public employees would have access too, Section 151, starting at page 59 directly references collective bargaining. The definition of a local government unit, which is used throughout this section in outlining who is impacted by this bill, is defined in section 150, 66.0506(1) as “any city, village, town, county, metropolitan sewerage district, long−term care district, transit authority... , local cultural arts district ..., or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state.” This is the definition that lets the 'collective bargaining' section apply to almost all public employees, not just state employees. The logic behind this requirement is assumable because a large portion of local government funding is received from the state, so indirectly these municipal employees impact the state budget. However, I feel the need to point out that my understanding of Republican principals is that they mandate for smaller government and local control, so I find it interesting that this bill eliminates the option for local governments to choose to maintain collective bargaining rights for their employees, effectively removing local control.
After defining what public employees are covered under this section, the bill begins with a discussion of wages. Basically the bill states that if any municipality wants to grant their public service employees an annual wage increase of more than the Consumer Price Index, they must pass a voter referendum approving this raise. This is billed as a cost-saving measure as well as giving more control to the taxpayers that indirectly pay these wages. However, telling someone who wants to devote their life to public service that they will be lucky to get a cost-of-living wage increase each year could have an extremely dampening effect on recruiting quality employees.
Also, requiring raises to be passed by referendum could create an issue with unequal services between poorer districts and more affluent districts. I'd have to check the statistics, but I'm guessing that poorer areas are less likely to have a successful referendum. The bill also requires a specific wording to the referendum that explicitly states the wages in actual dollars of the public employee, which if it is higher than that of the voter, could cause a referendum to be defeated simply out of jealousy. The wording is to read “Shall the .... [general municipal employees] in the .... [local governmental unit] receive a total increase in wages from $....[current total base wages] to $....[proposed total base wages], which is a percentage wage increase that is .... [x] percent higher than the percent of the consumer price index increase, for a total percentage increase in wages of .... [x]?” The wage increase cannot take effect until the referendum is passed (Section 305), and is required to be completed by April for collective bargaining agreements that take effect on July 1. I'm assuming, since there is nothing stating otherwise, that if the referendum is not completed by April that there is no chance for a wage increase above CPI. This could encourage employers to 'drag out' contract negotiations until after April to avoid potential wage increases.
The explicit forbidding of collective bargaining (except on wages as discussed above) is clearly summed up in one sentence, probably explaining why this portion of the bill was so quickly understood. Section 151, 66.0508(1m) states “no local governmental unit may collectively bargain with its employee”. Any local ordinance, law, or resolution that allows for collective bargaining is voided by this bill. There is an exclusion in 111.70(1) of the bill that allows public safety employees to maintain their collective bargaining rights on things other than wages. Walker has not been able to clearly outline why he feels that the different provisions are necessary, other than to state that Wisconsin has a long history of collective bargaining with safety employees. This is true of non-public safety employees as well, so I'm still researching a clearer answer for the different collective bargaining allowances. Local governments are also forbidden from creating a defined benefit pension plan for their employees unless the employees are required to pay at least 50% of the actuarial costs, presumably to steer all municipalities into using the state retirement system discussed in an earlier post.
Employers are forbidden from directly refusing to collectively bargain with employee representatives, but the bill allows that an employer is not refusing to bargain if they file a petition “requesting a determination as to majority representation” and the employer may continue to 'delay' bargaining until an election certifying the representation of the collective bargaining unit has been completed. This, coupled with the annual recertification requirement I will discuss later, effectively could require a collective bargaining unit to vote on representation and certification several times a year, delaying what limited bargaining is allowed, creating more administrative costs and hassles for the union itself, and allowing employers to essentially force a lapse of contract. The bill later eliminates the ability for an existing contract to be extended after the termination date, so a forced lapse of contract is a powerful tool for the employers.
The Budget Repair Bill essentially forbids the withdrawal of union dues from an employees paycheck (Section 205), a standard method of collecting union dues in many collective bargaining units currently. It appears that an employee may be able to personally request (in writing) to have these dues withheld, but I am honestly unclear as to what would then take precedent. The explicit forbidding of withdrawing those dues or the employees written request that dues be withheld. I would need someone with more legal knowledge to evaluate that conundrum for me. In addition to eliminating the paycheck withdrawal of union dues, the bill also states that employees that are part of a collective bargaining unit may remain a part of that union without being required to pay dues to the unit. Public safety employees are excluded from this provision, in retaining all of their collective bargaining rights they also retain the requirement that all union members must pay dues.
The bill allows union members to 'opt out' of dues while (as I will show shortly) greatly increasing the potential administrative costs to the union itself. I'll admit I would (almost) prefer that people be allowed to opt out of the union if they do not want to pay the dues to stating that they can be required to join but you can't make them pay the dues. This is an especially important provision to keep in mind when we discuss how often this bill requires that a bargaining unit survey or put issues to a vote of it's membership. Allowing members to opt out of the dues will limit the funds that a union has available to meet the requirements of this bill in regards to votes, which could mean a slow death to the collective bargaining unit itself (as if the limited collective bargaining rights weren't bad enough).
Arbitration of any disagreements covered in the collective bargaining agreement still exists, but as (except for public safety employees) the only thing allowed to be covered by collective bargaining is wages, this seems like a minor activity at best. There could be disputes over pay rates that could require arbitration, but other things such as disciplinary actions and unsafe working conditions that typically could have been resolved under arbitration would be solely the power of the employer under this bill. While I would like to think that most employers would want a safe, well-maintained workforce, I'm ashamed to say I don't have that much general faith in humanity. Arbitration also allows that if an impasse is reached and the issue cannot be resolved between the parties, the mediating body has the ability to make a ruling on the situation that is binding. The designation of a 'fact-finder' to investigate the situation but who is forbidden from mediating the dispute, only making recommendations to the arbitrator, attempts to make this an unbiased process.
Section 214 discusses the process for initiating and proceeding with contract negotiations. The provision that requires the employer and bargaining unit to notify of the desire to start negotiations seems straight-forward enough. However, the provision requiring that all negotiations be open to the public is troubling to me. I have to check to see if that is currently the process, if so perhaps I am being concerned for nothing, but if this is a new process I see it as almost solely a political maneuver as opposed to a fiscal issue. Since the general public cannot directly request anything in the negotiations, but public opinion could easily influence the requests made at the table, I see no reason for these meetings to be open to the public. There is a much higher chance that the bargaining unit will fall out of public favor for even requesting a modest raise than there is for the agency to receive negative press for requesting a wage freeze. Since the public will already be required to vote by referendum on any raise above the CPI, I'm unclear what the goal of having these meetings open to the public is. And I typically am a huge proponent of open government and public forums. But since negotiations typically start with the 'dream' offer and then meet in the middle, and since the public will have limited ability to directly influence the negotiations, it seems that it would just provide an opportunity for political grandstanding.
Representatives of the collective bargaining unit are to be elected and certified annually (by December 1 for schools and May 1 for all other bargaining units). I have to research further what the current election terms are for most public unions to determine if this is in-line with the current process. Besides adding (yet another) annual administrative hoop for the unions, the section also states that if none of the candidates receive at least 51% of the vote the commission will decertify the current representative and the employees would be nonrepresented. This 51% requirement, instead of simply installing whichever candidate gets the most votes, could be extremely difficult to meet if the union has more than 2 candidates running for the position. The bill states that the ballot will contain “the names of all labor organizations having an interest in representing the general employees participating in the election.”
It does not specify whether the bargaining unit has the ability to limit the groups listed on the ballot of if any group with any interest is required to be listed. Obviously this is an important point, as the more names there are on the ballot the less likely it is that any one name will get 51% of the votes. This seems to set up a large bias toward the employees becoming unrepresented, which is a concerning situation. The employees can request a 'run off' election where the name that received the least number of votes is dropped from the next ballot, but depending on the number of names originally this could still not provide a likelihood of 51% of the votes to a single name. Plus, each additional vote is an additional administrative and logistic cost to the union. If the employees become unrepresented, they are unable to vote for representation again for a year, and that new vote would be subject to the same 51% vote requirement. The union must also pay a fee to the commission for each election, apparently regardless of whether the election is successful in obtaining representation or not.
Contract duration under this bill is limited to one year and must coincide with the fiscal year. The contracts cannot be extended under this bill. I need to clarify what the current average length of a contract for public employees is to determine if this is a shorter time frame than contracts currently are active. The lack of an ability to extend the contracts is also concerning, especially if there is a delay in the state budget (which impacts individual employer budgets) in getting approved.
So under this bill, every year a collective bargaining unit must vote on representation (possibly multiple times if a run-off is required), resolve any questions of majority representation the employer brings, vote to stay certified, potentially write, defend, and pass a referendum before April, and initiate and complete contract negotiations. And all of these activities must be completed with (presumably) less fee collection because of the inability of the union to enforce collection of dues from members and/or have dues withdrawn from an employee's paycheck. I think it's obvious how this could be administratively and logistically difficult.
If the governor declares a state of emergency (and I'm hoping to research what requirements need to be met to declare a state of emergency), any employee can be fired under section 344 for failing to report to work for ANY 3 working days (these do not have to be consecutive) or participating in strike activities. The bill does require the employee be notified of the discharge in writing, but does not give a time-frame for this notice. The employee does have an 'opportunity to respond' but it doesn't state that the employee has a chance to defend themselves or fight the discharge, just that they can 'respond'.
I am most concerned about the “any 3 working days” part of this section. As there does not appear to be any limit to the length of time that a state of emergency can be active, nor is there any explicit stipulation that the “3 days” requirement only applies to agencies directly providing services related to the emergency, it is possible for an employee to be fired for an illness that takes place during an extended state of emergency or for employees that are not directly in the area impacted to be fired even though they are not 'treating' the emergency. Also, I want to find out more details as to what requirements must be met for a state of emergency to be declared to avoid potential abuse of this power by the governor.
So this completes my overview of Wisconsin's Budget Repair Bill. This bill has passed the state assembly but is currently not able to be voted on in the Senate. Governor Walker is also releasing his actual budget later today (March 1), so I will review that in my next post. After that, I hope to provide reviews of how the budget and the Budget Repair Bill directly impact areas of the state such as Medicaid, school funding, and transportation infrastructure.
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