Potential Restoration of Collective Bargaining Rights for Municipal Employees in Wisconsin? 

When first passed on March 9, 2011, Wisconsin Act 10 restricted collective bargaining rights for public sector employees. Act 10 allowed “public safety employees” to continue to collectively bargain with their municipal employers, but effectively eliminated collective bargaining rights for all other municipal employees. Act 10 survived legal challenges in both Federal[1] and Wisconsin Courts[2].

On July 3, 2024, Dane County Circuit Court Judge Frost issued a decision and found that parts of Wisconsin’s Act 10 violate the equal protection guarantees of the state Constitution. Abbotsford Education Association v. Wis. Employment Relations Commission (WERC), Dane County Case No. 2023CV3152.

Plaintiffs were comprised of a group of seven union organizations and other interested individuals. The lawsuit was filed in November 2023 after Justice Janet Protasiewicz was elected to the Wisconsin Supreme Court, potentially tilting the balance of the Court to a liberal majority. Plaintiffs were also influenced by a similar legal challenge that was brought in Missouri, which found that a similar attempt to curtail public sector bargaining was unconstitutional because the law violated the Missouri Constitution’s Equal Protection Clause[3].

In Abbotsford Education Association, Judge Frost determined that Act 10 violated the Equal Protection Clause of the Wisconsin Constitution, in that Act 10’s definition of a “public safety employee” treated certain law enforcement officers differently. In order to survive a challenge under the Equal Protection Clause, the difference must have a rational basis. In his conclusion, Judge Frost wrote “Because nobody could provide this Court with an explanation that reasonably showed why municipal police and fire and State Troopers are considered public safety employees, but Capitol Police, UW Police and conservation wardens, who have the same authority and do the same work are not. Thus, Capital Police, UW Police, and conservation wardens are treated unequally with no rational basis for the difference.”

While the case in Dane County Circuit Court does not have a direct impact on municipal employers throughout Wisconsin, this matter will assuredly be heard by the Wisconsin Supreme Court, which is widely viewed as being sympathetic to the unions’ legal arguments. Plaintiffs will be expected to petition directly to the Wisconsin Supreme Court and bypass the Court of Appeals. If the Wisconsin Supreme Court takes the case, municipal employers may consider preparing for an environment where the pre-Act 10 collective bargaining rules apply.

What Should Municipal Employers Do to Prepare for the Potential Revival of Collective Bargaining Rights?

It will take time for the Wisconsin Supreme Court to hear arguments and issue a binding decision in the Abbotsford Education Association case. That said, municipal employers may consider beginning to prepare for the potential restoration of collective bargaining rights for all municipal employees. Municipal employers may want to:

1. Dust off the old contracts. It has been over a decade since anyone reviewed or administered many of the previous collective bargaining agreements. It will be important for administrators to understand the terms contained in the old agreements. If collective bargaining rights come back, unions will likely need to petition WERC to obtain majority status.
2. Refresh your understanding of the law. Wisconsin law governing the labor rights of municipal employees is found in the Municipal Employment Relations Act (Wis. Stat. §111.70-77) and Wisconsin State Employment Labor Relations Act (Wis. Stat. §111.81-94). Some basic labor law concepts include:
   1. Collective bargaining rights. If Act 10 is found to be unconstitutional, municipal employees will have the right to form a union and collectively bargain over their wages, hours, and conditions of employment.
   2. Compliance with prohibited practice statute (Wis. Stat. §111.70(3)). Employers may not interfere with, restrain, or coerce municipal employees in the exercise of their collective bargaining or other mutual aid or protection rights.
   3. Interest arbitration. In the event the parties bargain a contract and cannot reach agreement, the parties may engage in interest arbitration. In interest arbitration, the parties submit final offers, and an arbitrator decides which of the parties’ final offers would become part of the collective bargaining agreement. The interest arbitration process is a “winner take all” process and is determined by criteria found in Wis. Stat. §111.77(6).
   4. Grievance arbitration. Union employees may avail themselves of the grievance arbitration process to contest violations of a collective bargaining agreement. The grievance arbitration process may be used to contest termination of employees when union alleges that the termination is not for “just cause.”
3. Review and update existing policies now. Prior to Act 10, municipal employers were required to collectively bargain with municipal employees over wages, hours and conditions of employment. This meant that employers were unable to make any unilateral changes to these items without agreement from the unions through the collective bargaining process. Employers should review and revise their policies and benefit packages now to ensure they are updated. Municipal employers will see their ability to unilaterally make changes severely limited if Act 10 is found unconstitutional.
4. Conduct labor relations training. For many municipal employers, it has been over a decade since they have negotiated and managed a labor agreement or developed a working relationship with a union. It will take training and strategy to get back up to speed with the employer’s obligations under the Wisconsin Municipal Employment Relations Act. It will be very important for impacted municipal employers, their boards and administrators, to understand their obligations and be prepared for this significant change.

Axley Attorneys has decades of labor experience representing municipal employers in labor matters, including union organizing drives, collective bargaining, interest arbitration, grievance arbitration, and informal contract administration. Axley’s representation of municipal employers in union matters has continued after Act 10 became law, and Axley has continued to assist police departments, fire departments, and other employers with public safety employees who remained unionized. Axley Attorneys will continue to monitor the status of the legal challenge to Act 10.

[1] Wisc. Educ. Ass’n Council v. Walker, 705 F.3d 337 (7th Cir. 2013).

[2] Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337.

[3] Mo. Nat’l Educ. Ass’n v. Mo. Dep’t of Labor & Indus. Rels., 623 S.W.3d 585 (Mo. 2021).