Appeals court won't suspend contempt finding in union case

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Associated Press
Monday, November 4, 2013

MADISON—A Wisconsin appeals court refused Monday to suspend a contempt-of-court finding against state labor relations officials who continued enforcing parts of Gov. Scott Walker's collective bargaining restrictions despite a ruling the language is unconstitutional.

The ruling means certification elections for local public worker unions remain on hold and local municipalities and school districts must continue negotiating with their employee unions. It also shifts the focus to the state supreme court, which next week is expected to hear oral arguments on the constitutionality of the provisions, as well as the contempt ruling.

The Wisconsin Employment Relations Commission had argued the contempt ruling will prevent it from holding re-certification elections for hundreds of local public unions this year, creating confusion about whether the unions remain viable.

The 4th District Court of Appeals noted the state Supreme Court is weighing the constitutionality of the provisions. Both the commission and the unions could face equal harm depending on which way the high court goes, the appellate court said.

“The harms at issue are substantial, but are also roughly equal in severity,” the court said. “In this situation, it cannot be said that the harm and injury factors weigh in favor of a stay."

The Republican-controlled Legislature in 2011 passed a Walker proposal that stripped most public workers across all levels of government of their collective bargaining rights. The plan allows their unions to collectively bargain only for raises limited to the rate of inflation. It also requires union members to vote each year on whether they want their union to continue representing them in those limited wage negotiations. A federal judge and a federal appeals court have both found the law constitutional.

But Dane County Circuit Judge Juan Colas struck down provisions that applied to unions representing Madison teachers and Milwaukee public workers last year. But WERC has continued to prepare for annual re-certification elections for about 400 other local public employee unions, arguing Colas' ruling applied only to the Madison and Milwaukee unions.

The elections had been scheduled to begin last Friday. But six unions filed a motion with Colas in September demanding he find WERC in contempt, arguing his 2012 ruling applies statewide. Colas found the commission in contempt in October, declaring no one can enforce the provisions against any local public unions.

State attorneys representing WERC asked the appeals court for an emergency suspension of the contempt finding pending the Supreme Court's decision on constitutionality.

They argued if the elections don't begin by Tuesday they can't be completed by the Dec. 1 deadline prescribed in the restrictions. Confusion would ensue between unions and management about whether the unions can legally negotiate, they said. They also argued the commission didn't intentionally disobey Colas.

The appeals court ruled it's unclear how long any delay in the elections might be; if the Supreme Court upholds the provisions it could order the elections to take place promptly, the appellate court said.

If the appellate court were to suspend the contempt ruling and allow the elections to move forward and the Supreme Court finds the language is unconstitutional, the unions would have spent time and money campaigning for nothing, the ruling said.

The court went on to say the commission failed to make a strong showing that it would succeed in a more fully briefed, less-hurried attempt to defeat the contempt ruling. The commission presented inconclusive case law on whether non-parties can be injured, the court added.

The Supreme Court has invited both WERC and the unions to address the contempt ruling when they present their cases on constitutionality during oral arguments on Nov. 11. A spokeswoman for the state Justice Department, which is representing WERC, said in an email to The Associated Press the agency plans to take the matter up again then. She did not elaborate.

Lester Pines, an attorney for the Madison teachers union and the Kenosha Education Association, one of the unions that asked for the contempt ruling, didn't immediately return messages.

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