Forced-Unionism Advocates Shouldn’t Gloat Too Much Over This Week’s Wisconsin Court Ruling

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Explaining the Latest Act 10 Court Action – Right Wisconsin 

Pro-Right to Work Wisconsin attorney Rick Esenberg: "Municipal employers who negotiate agreements that are not compliant with Act 10 do so at their own risk," and nothing about this week's state court decision changes that fact. Image: VCY America TV

Big Labor bosses and other proponents of reinstating compulsory union dues and fees and wide-ranging union monopoly bargaining in Wisconsin government workplaces where these practices have been curtailed by Act 10, which the Legislature adopted two years ago, are currently gloating about a state court decision issued on Tuesday.

In the ruling, the state Court of Appeals declined to grant a stay on an activist September 2012 circuit court decision emanating from Dane County that held Act 10 to be unconstitutional.

The Dane County decision, by Judge Juan Colas, is puzzling because it relies heavily on federal constitutional arguments that had already been rejected in federal courts.   And this January the U.S. Court of Appeals for the Seventh Circuit rejected them again, even more resoundingly than a federal district court had done in the spring of 2012.

Right to Work supporters in Wisconsin and nationwide are naturally unhappy about the ruling that Colas’ decision should remain in effect for now, but forced-unionism advocates shouldn’t gloat too much.  Wisconsin attorney Rick Esenberg, who together with a National Right to Work Legal Defense Foundation attorney is representing Badger State public employees who don’t want to be corralled into any union in the ongoing litigation over Act 10, explains why in the commentary linked above.

First of all, notes Esenberg, the Court of Appeals did not refuse to issue a stay because it believes the Dane County ruling is likely to be upheld.  This week’s decision simply declined to say it is nearly certain the Court of Appeals will uphold Act 10 once it considers the merits of the claims against it.  Since the Court of Appeals hasn’t yet been briefed on the merits, this isn’t surprising.

Two other aspects of the ruling discussed by Esenberg are also significant and not favorable for Big Labor.  First:

 The decision confirms that Judge Colas’ decision is not binding on nonparties. One of the problems faced by local units of government is that they don’t know what to do as contracts come up for renewal or unions demand that contracts negotiated in accordance with Act 10’s limitations be reopened. If Judge Colas is wrong, then any contracts including negotiated terms that are not permitted by Act 10 will be unlawful.

On the other hand, adds Esenberg, it is true that if Act 10 is in the end tossed out in court then municipalities now refusing to bargain over terms it prohibits could be accused of having failed to bargain in good faith.  But this would likely have been the case even if Judge Colas’ ruling had been stayed.

Esenberg’s final point is the most important:

The decision confirms that there is no “window of opportunity” to violate Act 10. The Court of Appeals confirmed the long standing rule that a decision of a circuit court has no precedential value. It noted that there was risk in either negotiating a contract inconsistent with Act 10 or in refusing to bargain over terms prohibited by Act 10. The former is true because, if Judge Colas is reversed, his decision becomes a nullity. It did not “suspend” the operation of Act 10 or place it on hold. Municipal employers who negotiate agreements that are not compliant with Act 10 do so at their own risk.

In short, this week’s Court of Appeals ruling will make it somewhat easier for union bosses to continue harassing state and local elected officials with threatened or actual litigation if they respect public employees’ rights under Act 1o until a final court decision on this law is issued.  But it does not make it much more likely that Big Labor will actually succeed in persuading the Wisconsin Supreme Court to overturn Act 10.  That ultimate outcome remains possible, but improbable at this time.