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WERC Found in Contempt for Enforcing Act 10

By D&K’s School and Higher Education Law Team

In a decision issued earlier this week, Judge Juan Colas of the Dane County Circuit Court found the Wisconsin Employment Relations Commission (WERC) Commissioners in contempt of court for enforcing 2011 Wisconsin Act 10.

In September of 2012, Judge Colas ruled that certain provisions of Act 10 were unconstitutional, including the requirement that unions face recertification elections each year, the prohibition against making union dues deductions, and limits on bargaining over employee wages. That decision was appealed to the state court of appeals.

The court of appeals ultimately certified the case to the state Supreme Court, where a decision is pending. However, the court of appeals refused to stay Judge Colas’ decision before transferring the case and rejected the state’s arguments about the disruption Judge Colas’ decision would precipitate statewide. In this regard, the court pointed out that the state itself maintained that Judge Colas’ decision did not have statewide effect and stated that Judge Colas’ decision did not have the effect of a court of appeals or Supreme Court decision. The court of appeals’ reference was generally understood to contrast the court of appeals’ and Supreme Court’s statewide jurisdiction with the authority of a circuit court.

In September of 2013, the unions that had appeared before Judge Colas filed motions asking that the court prevent the WERC from holding recertification elections around the state. In this instance, Judge Colas concluded that the WERC could not enforce Act 10 against “anyone,” but held at the same time that the court lacked authority over parties that were not directly involved in the case.

In response, six public sector unions that had not been involved in the original case before Judge Colas asked that he find the WERC in contempt for enforcing Act 10. The unions also asked that Judge Colas order the WERC to cancel recertification elections, refund election fees paid by the unions, and award the unions attorney fees related to the contempt motion.

Judge Colas agreed with the unions’ arguments in an oral ruling issued from the bench, stating that “I think that is contempt – that is an intentional disregard of the court’s order.” Judge Colas added that “I think the (court’s original) judgment plainly has statewide effect with respect to the actions of the Commission.”

Assistant Attorney General Steven Kilpatrick advised the court that the WERC would immediately implement the Judge’s order. WERC General Counsel Peter Davis subsequently announced that the recertification elections would be cancelled unless the Supreme Court acts before the elections were scheduled to begin.

Judge Colas indicated as part of his oral decision that he will issue a written decision in the next few days. That decision may answer questions that Judge Colas’ decisions have raised, but it could further cloud an already unclear picture on the current state of the law in Wisconsin for public employers. Consequently, most public employers are waiting for an opportunity to review and analyze Judge Colas’ written decision once it is issued before making firm commitments to unions and employee groups.

For example, how will Judge Colas’ most recent decision reconcile with his earlier decisions, which seem to limit his orders to the parties, most notably the WERC, and with the court of appeals previous comments about the scope of the circuit court’s authority when compared to that of the court of appeals or the Supreme Court? Judge Colas’ statement that his ruling has statewide effect “with respect to the actions of the Commission” again suggests that his decision is limited to the parties that appeared in the case. To be sure, holding that the WERC cannot enforce Act 10 may stop short of a more sweeping ruling that no one in Wisconsin is covered by the challenged provisions of Act 10, given Judge Colas’ earlier comments restricting his decision to the parties before him. However, it is equally possible that Judge Colas’ written decision will revisit this issue and clarify the court’s own perspective on how far its authority and its earlier decisions are meant to reach.

For now, it may be best for public employers that are immediately confronted with bargaining demands to first wait for a clearer understanding of Judge Colas’ reasoning from the written decision and, possibly, further communication from the WERC as to its position going forward. The Wisconsin Supreme Court will, hopefully, answer outstanding questions on these issues in the next several months and – at least for now – patience may be an essential part of sound strategic planning for public employers.

Davis & Kuelthau, s.c. will continue to monitor this case and provide updates to clients as events transpire. In the interim, please contact your Davis & Kuelthau, s.c. attorney or the School and Higher Education Law Chair, James R. Macy, at 920.232.4841 / if you have questions or concerns.