Key provisions of the controversial Wisconsin Collective Bargaining Law (Act 10) were found to violate the United States and Wisconsin constitutions by Dane County Circuit Judge Juan Colás on September 14, 2012, in Madison Teachers, Inc. et al. v. Walker, No. 11CV3774.  This ruling voided several key provisions of the law.

If the state judge’s ruling is upheld by the Wisconsin Court of Appeals and the Wisconsin Supreme Court, public-sector employers must negotiate with unions as they did prior to the enactment of Act 10.  However, the September 14th ruling likely will be stayed pending appeal.  Many believe it is unlikely that the ruling ultimately will be upheld.

What Should Employers Do?

The ruling will likely be stayed (held in abeyance) until the Wisconsin Supreme Court rules on the issue.  This will take some time.  If the ruling is stayed, public employers would not need to alter their operations or address with a union the terms and conditions of employment for employees on account of the ruling, pending the outcome of appeals.  Indeed, acting too soon may require further changes if the ruling is overturned by the Wisconsin Supreme Court, causing unnecessary confusion and complications.  Further, reversing concessions provided now will likely result in employee distress that can be avoided by a wait-and-see approach.

Public employers should consider refraining from opening negotiations with unions representing their employees over non-wage issues.  If the ruling is stayed, it will continue to be illegal for public-sector employers to bargain with unions over non-wage issues.  During the stay period, the employer will continue to have unilateral authority to enact and enforce non-wage terms and conditions of employment.

In addition, employers should resist union pressure to commence bargaining or revoke implemented policies.  Unions will likely use the court ruling to pressure public-sector employees to abandon changes made by the employer and demand a say in the terms and conditions of employment.  Unless they are legally obligated to do so, employers should be wary of acceding before the legal setting becomes clearer.