Running head: BUDGET REPAIR BILL
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"In solidarity comrades!!!"
Wisconsin Budget Repair Bill of 2011
Cynthia Hall
George Mason University
EDUC 871
5/1/13
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Since 2011, there has been increased attention to the rights of public sector employees.
Unions and collective bargaining rights have been challenged in states with historically strong
roots in pro-union, pro-worker legislation. Voters in Ohio repealed Senate Bill 5 on November
8, 2011 which would have significantly weakened the collective bargaining rights of public
employees. The Michigan members of the House and Senate approved House Bill 4003 and
Senate Bill 116 on December 6, 2012 granting right-to-work for public and private sector
employees, and the members of the Minnesota House voted to table a right-to-work bill in April
2012. On June 21, 2012, in a 7-2 decision, the justices of the United States Supreme Court ruled
that the First Amendment to the United States Constitution does not allow public sector unions to
require objecting nonmembers to pay a special fee to finance union political activities (Knox v.
Service Employees International Union, 2012). On March 11, 2011, Wisconsin Governor Scott
Walker signed Wisconsin Budget Repair Bill into law severely undermining the power of
collective bargaining units of general employees. The Wisconsin Budget Repair Bill garnered
widespread publicity due to the overwhelming negative response by public employees and some
members of the Wisconsin Legislature.
2011 Wisconsin Act 10 (Wisconsin Budget Repair Bill)
On February 11, 2011, Governor Scott Walker introduced the Wisconsin Budget Repair
Bill, Senate Bill 10, which came to be known as Act 10, declaring the need to balance the state
budget and manage finances during the economic crisis. As part of his press release, Governor
Walker (2011) was quoted as saying, “We must take immediate action to ensure fiscal stability in
our state. This budget repair bill will meet the immediate needs of our state and give government
the tools to deal with this and future budget crises" (Governor Walker introduces budget repair,
para. 1, 2011). Governor Walker announced provisions of the bill to include changes to
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employee compensation, state and local government, Medicaid, school district and public sector
labor relations, and the state sector consisting of employees of the State of Wisconsin. Although
the majority of Act 10 went largely unnoticed, workers across Wisconsin took issue with
proposals to require general employees to contribute one-half the cost of pensions, to require
general employees covered by State plan health insurance to contribute at least 12 percent toward
the premiums, and to limit general employee bargaining rights (Cavanaugh & Bull, 2011). The
Wisconsin Education Association Council (WEAC) conceded to the changes in teacher pensions
and health care, but vowed to fight the efforts of Walker and other Republicans to dismantle
collective bargaining rights (Cavanaugh & Bull, 2011). Thousands of public employees
protested the bill, including hundreds of teachers who called in sick to participate in
demonstrations forcing school officials to close schools (Kleefled, 2011).
Of particular concern to WEAC were provisions addressing distinctions between public
safety employees and general employees, prohibitions on employer payroll deductions of union
dues, annual recertification of collective bargaining units, and collective bargaining negotiations.
Act 10 distinguishes between public safety or protective occupation participants and general
employees. General employee simply means an employee who is not a public safety employee.
Transit employees were excluded from the Act 10 changes altogether (M. Gratz, personal
communication, March 20, 2013). Public safety employees include but are not limited to
members of the state traffic patrol, a state motor vehicle inspector, police officers, fire fighters,
and excise tax investigators employed by the department of revenue (Wisconsin Statute § 40.02
(48)(a), 2011). Act 10 also prohibits the collection of union dues from a general employee's
earnings but not from public safety employees (Wisconsin Statute § 111.845, 2011). In addition,
Act 10 requires annual certification elections for general employee bargaining units but not for
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public safety employees (Wisconsin Statute § 111.70 (4) (d) 3.b., 111.83 (3) (b), 2011). To
retain its status as exclusive collective bargaining representative of a general employee unit, the
representative must annually request a secret ballot election and must receive at least 51 percent
support among the employees eligible to vote in the election. If the representative does not
obtain 51 percent of votes, at the expiration of the collective bargaining agreement, the current
representative will be decertified and the general employees will no longer be formally
represented. Finally, Act 10 limits negotiations only for general employees to total base wages
and excludes any other compensation, including negotiating "fair-share" agreements which
require that employees opting out of the union still pay their proportionate share of the cost of
the collective bargaining process and contract administration (Wisconsin Statute § 111.81 (9),
2011). Fair share agreements address how union dues are collected from members and
nonmembers. General employee unions will have a difficult time collecting dues from
nonmembers and members alike (P. Secunda, personal communication, February 26, 2013).
Legislative History
The first United States collective bargaining law for public employees was passed in
Wisconsin in 1959 (Murphy, 1990, p. 214). State unions in Wisconsin are covered under the
State Employment Labor Relations Act (SELRA) and school and local government unions are
covered under the Municipal Employment Relations Act (MERA). Act 10 amended portions of
both SELRA and MERA. For the most part, prior to Act 10, SELRA and MERA did not
distinguish public safety from general employees, rather all were considered employees. This
distinction has created clear divisions regarding the bargaining rights of public safety employees
and general employees. Act 10 amended regulations for general employees concerning
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bargaining unit certification, fair share agreements, collection of union dues, and topics for
negotiation.
Before Act 10, in order to be recognized as the exclusive bargaining representative of all
of the employees in a bargaining unit, whether union members or not, employees could pursue
several options (M. Gratz, personal communication, March 7, 2013). A union could request and
be granted voluntary recognition by the employer. A union could petition the Wisconsin
Employment Relations Commission (WERC) to conduct a secret ballot election and to certify it
as exclusive representative if a majority of bargaining unit employees voting vote in favor of
being represented for collective bargaining by that union. Or, in extremely rare instances, the
WERC could order an employer to bargain with a union without employer voluntary recognition
and without a representation election being conducted as an extraordinary remedy for extreme
employer prohibited practices that the WERC found prevented the employees from having a free
and fair secret ballot election (M. Gratz, personal communication, March 7, 2013). Once a
representative was recognized as the exclusive bargaining representative for members and non
members, it was presumed that the union would maintain majority status indefinitely. A petition
could be raised to decertify the unit, but it required a showing of interest by signatures of 30
percent of voters. In contrast, Act 10 imposes rigid guidelines for new and existing bargaining
units throughout the state for general employees. Representative units are no longer entitled to
indefinite majority status, but must secure 51 percent of all employee votes annually to remain
the exclusive bargaining unit. As of fall 2011, the WERC implemented a timing and fee
schedule for requested annual certification elections, ranging from $200 for 1-100 eligible voters
to $2000 for over 3000 eligible voters (Order of the Wisconsin Employment Relations
Commission, 2011, p.2). In a federal ruling on March 30, 2012, Judge Conley ruled that annual
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recertification requirements violated first amendment rights and equal protection. As a result the
WERC suspended certification rules (P. Davis, personal communication, April, 24, 2013).
However, the federal 7th Circuit Court of Appeals reversed the lower court's decision on January
18, 2013 and ruled that all three provisions were constitutional. As of May 2013, the WERC will
begin the work necessary to resume the conduct of elections stipulated by Act 10 (P. Davis,
personal communication, April, 24, 2013).
Act 10 instituted one year limit on contract durations for general employee units. As a
result, bargaining contract terms, once lasting up to three or four years, are now limited to one
year duration (Gratz, 2012). In addition, in the event of a contract negotiation impasse for
general employees only, an employer can present its last offer to the exclusive representative of a
general employee bargaining unit and there is no recourse to an outside arbitration process (M.
Gratz, personal communication, March 20, 2013).
Prior to Act 10, SELRA and MERA expressly allowed unions and employers to agree to
and enforce “fair share agreements” (Gratz, 2012). Fair share agreements required employers to
deduct and pay over to the union a fee representing the cost of collective bargaining and contract
administration (often approximating union dues for union members), with or without the
individual employee authorizing those paycheck deductions. (Wisconsin Statute § 111.845,
2011, 111.81 (9), 2011, M. Gratz, personal communication, March 7, 2013). Act 10 outlawed
fair share agreements for general employees but did not outlaw them for public safety
employees. Act 10 also outlawed "dues checkoff" agreements only for general employees. Dues
checkoff agreements required employers to deduct union dues from the employee’s paycheck
and pay those dues over to the union, provided the employee gave explicit written permission to
do so (M. Gratz, personal communication, March 20, 2013). Consequently, general employee
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unions will have to be resourceful and creative when trying to collect dues, particularly from non
members.
In addition to outlawing fair share agreements, Act 10 outlaws negotiations for general
employees to total base wages limited to no more than the year's inflation rate according to the
Consumer Price Index (CPI) (Gratz, 2012; Secunda, 2012). Negotiations exclude "any other
compensation, which includes, but is not limited to, overtime, premium pay, merit pay,
performance pay, supplemental compensation, pay schedules, and automatic pay progressions"
(Wisconsin Statue § 111.91(3)(a), 2011). Before the 2011 changes, general employee bargaining
units, unions, and employers were required, at the other’s request, to bargain collectively about a
wide variety of mandatory subjects of bargaining including but not limited to monetary
compensation, health coverage and benefits, hours, working conditions, and grievance
procedures. Wisconsin Statue § 111.91 (2011) explicitly outlaws general employee union
negotiations on health benefit plan requirements, limitations on contributions, the provision to
employees of the health insurance coverage, coverage for dependents, coverage of and prior
authorization for treatment of an emergency medical condition, requirements related to coverage
of drugs and devices, requirements related to experimental treatment, coverage of treatment for
nervous and mental disorders and alcoholism and other drug problems, and requirements related
to internal grievance procedures.
Prior to Act 10, general employee unions and employers were required to bargain about
what, if any, grievance procedures would be available to resolve disputes as to the proper
meaning and application of the various provisions of their ordinarily comprehensive collective
bargaining agreements (M. Gratz, personal communication, March 20, 2013). Under Act 10,
bargaining with general employee unions about a grievance procedure is outlawed, and the
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parties’ agreements about base wages are enforceable only by means of a complaint of prohibited
practice typically filed with the WERC (M. Gratz, personal communication, March 20, 2013).
Act 10, however, does require all public employers to establish a procedure for resolving
disputes about general employee discipline, discharge, and workplace safety. Such procedures
must include an impartial hearing officer, but the employer’s governing body must be the final
decision making authority.
In addition, general employees are now required to contribute 5.8 percent of their salaries
to their pension plans and 12 percent of State health care plan premiums. This change is in stark
contrast to employment relations before Act 10 when it was common to find employers who paid
all employee and employer shares of pensions and 90 percent or more of health insurance
premiums (Gratz, 2012). In a short period of time, employees saw dramatic changes associated
with health care, pensions, and grievance procedures and simultaneously discovered their union
representatives were unable to negotiate the changes on their behalf.
Support and Opposition
When Governor Scott Walker introduced the Wisconsin Budget Repair Bill, Senate Bill
10, on February 11, 2011, supporters and opponents immediately took to the media to garner
support for their cause. Governor Walker insisted the Repair Bill "balance[s] the budget and
lay[s] the foundation for a long-term sustainable budget through several measures without raising
taxes, raiding segregated funds, or using accounting gimmicks" (Governor walker introduces
budget repair (011), para. 3). In addition, Walker strongly believed that collective bargaining
"stood in the way of local governments and school districts being able to balance their budget"
(Shapiro, 2011, para 51.) Walker was adamant that his modest bill (Shaprio, 2011) had broad
implications for the rest of the country.
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For us, we’re doing this to lead the way in our own state, to get Wisconsin working again.
But if along the way we help lead a movement across the state to pass true fiscal reform,
true budgetary reform, to ultimately inspire others across this country state by state and in
our federal government . . . I think that’s a good thing and a thing we’re willing to
accept as part of our legacy. (Stein, Walker, & Marley, 2011, para 1)
In support of Governor Walker, author Jim Yardley (2011) of American Thinker, a "daily
internet publication devoted to the thoughtful exploration of issues of importance to Americans"
sympathized with the economic difficulties facing Wisconsin and applauded the Governor's
efforts to balance the state budget (para 3). Americans for Prosperity (AFP), "an organization
committed to educating citizens about economic policy", created and disseminated an
informational brochure containing quick facts about the Budget Repair Bill (2013, para 1). AFP
supported Walker's position on collective bargaining saying,
The plan would end the practice of public sector union bosses strong arming politicians
for exorbitant benefits and absurd contract concessions. The plan rightly calls for an end
to the ability of certain public sector unions to band together to pressure policy makers
into unnecessary contract concessions. (Quick facts, 2011, para 2)
During Governor Walker's recall election, Michael Crivello, president of the Milwaukee
Police Association released a statement in support of Governor Walker saying, "Walker has a
strong record of supporting public safety with an unwavering commitment to first responders.
Today, we are proud to announce our support for Governor Walker’s reelection” (Marley, 2012).
Dave Seager, president of the Milwaukee Professional Firefighters Association, echoed a similar
response, "Throughout his service in the State Assembly, as Milwaukee County executive, and
now as governor, Governor Walker has always supported public safety and protected the needs
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of first responders. There is no greater advocate for public safety than Governor Walker”
(Docter, 2012, para 3).
The Support Gov. Walker: No Collective Bargaining Facebook page was launched On
February 14, 2011 and currently has 4,162 followers. Within days of launching, followers began
posting strong opinions in favor of Governor Walker. "Stand Strong against these Union
Thugs...Good Job" (Support Gov. Walker, Facebook 2/18/11). "No Unions in the Public
sector!!!!!!!!!!!!!!!!!, I'm tired of the free loaders living off MY DIME!!!!!!" (Support Gov.
Walker, Facebook 2/18/11). "People who earn their salaries directly from TAX PAYERS should
not be allowed 'Collective Bargaining' privileges........" (Support Gov. Walker, Facebook
2/19/11). Some posters even enlisted the support of the entire country, "Rock on, Gov. Walker.
The American people support you" (Support Gov. Walker , Facebook 2/18/11). Posters were
ferocious about dismantling collective bargaining rights, particularly for teachers, "Fire those
teachers, this is not about the children it's about the unions bloated salaries and benefits!! These
teachers should be ashamed of themselves for involving their students in this protest. I do not
live there but I agree with your Gov." (Support Gov. Walker, Facebook 2/18/11). Individuals
who didn't have children felt just as strongly about the culpability of teachers, "if I were a parent,
I would insist that my child not be taught by any teacher who is protesting. It is time for the
parents to stand against this as well. Any teacher lying about calling in sick to join a protest,
what value can that teacher be?" (Support Gov. Walker, Facebook, 2/18/11).
In contrast, opponents launched Governor Scott Walker Sucks on February 11, 2011.
The emotional sentiment among the posters was just as passionate for opponents. "I'm sorry to
say that this man in his short run not only sucks but he also swallows. Get him OUT of the
Wisconsin Gubernatorial Seat NOW!! (Governor Walker Sucks, Facebook 2/15/11). "The tea
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party is coming to Madison! Drown them out with chants. HEY, HEY, HO, HO, SCOTT
WALKER'S GOT TO GO... HELL NO WE WON'T GO, KILL THE BILL... In solidarity
comrades!!!" (Governor Walker Sucks, Facebook, 2/19/11) Some posters equated Walker with
totalitarian rulers such as Hussien or Stalin, "The man is a dictator. Workers, don't give up the
fight. It's now or never for your futures. All who can, fight! Those who don't can move to
Mexico. Or Iran. Or Iraq. But get out" (Governor Walker Sucks, Facebook 2/18/11). One poster
echoed the same opinion in one sentence, "His nickname is hitler!!!!" (Governor Walker Sucks,
Facebook, 2/16/11). Teachers flocked to Governor Scott Walker Sucks to voice their opinions
and garner support. "I am a teacher, and I am not government waste!" (Governor Walker Sucks,
Facebook, 2/22/11). "I protest the bill because it will harm the students I love, and it will
damage my own children's educational experience. And if you can read this, be damn sure you
thank your teachers" (Governor Walker Sucks, Facebook, 2/18/11).
Although police officer and firefighter union presidents endorsed Governor Walker,
individual officers and firefighters questioned the authenticity of Walker and Act 10. A
Wisconsin firefighter who attended the February protests was quoted as saying, "I went to show
support. We need to show that, even if we weren't included, we support the public worker
unions. We're with them" (Shapiro, 2011, para 23). A veteran police officer for the city of
Madison alleged, "Governor Walker is not telling the whole story on what he's trying to
accomplish. It's about breaking unions" (Shapiro, 2011, para 25). Jim Palmer, executive director
of the Wisconsin Professional Police Association, sympathized with the many officers who
openly supported opponents of Act 10.
Law enforcement officers go into the profession to be helpful to people. So they see this
as an opportunity to continue doing that. I think they're worried about a whole class of
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people they work with who will be deprived of their rights, and the second thing is: We
could be next. (Shapiro, 2011, para 17).
Mary Bell, president of WEAC, staunchly opposed Act 10 and publicly spoke out against
Act 10 and Governor Walker,
Walker has taken an ax to our public schools, while at the same time increasing taxpayer
funding of private schools. He's turned his back on the Wisconsin tradition of valuing
public education. As a result, his extreme policies are hurting our students. (Bell, 2011)
Rick Badger, the executive director of AFSCME's Wisconsin 40 council cautioned the
public to think critically about the impact of Act 10, "I think what people need to see in this is
that it's not just an attack on public service unions. It's really a concerted attack by powerful
interests that really want to see working class people be brought down" (Shaprio, 2011, para 13).
Joshua Freeman, Professor of History at the Murphy Institute, Queens College, and the CUNY
Graduate Center, reiterated Badger's concern for working people saying, "It's a symbolically
huge stab to see workers rights and mechanisms for conciliation being undone" (Shapiro, 2001,
para 8). Even President Obama offered his support to opponents of Act 10.
Some of what I've heard coming out of Wisconsin, where you're just making it harder
for public employees to collectively bargain generally seems like more of an assault on
unions. And I think it's very important for us to understand that public employees,
they're our neighbors, they're our friends. These are folks who are teachers and they're
firefighters and they're social workers and they're police officers. They make a lot of
sacrifices and make a big contribution. And I think it's important not to vilify them or
to suggest that somehow all these budget problems are due to public employees. (Benen,
2011)
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Legislative and Legal Challenges
In an effort to prevent final authorization of Senate Bill 10, Democrats in the Assembly
and Senate employed two different tactics. Democrats in the Assembly, who were outnumbered
by Republicans, introduced numerous amendments to the bill and even considered leaving the
state entirely to prevent a vote on the bill (Glauber, Stein, & Marley, 2011; Secunda, 2012).
Both attempts to block the bill proved unsuccessful and it was passed, in its original form, in the
Republican controlled Assembly. Although the Republicans controlled the Senate, 19-14, a sixty
percent majority was needed to pass the bill because of fiscal provisions (Secunda, 2012). In an
attempt to block the vote, Democratic Senators left the state of Wisconsin and hole up in
neighboring Illinois for nearly three weeks (Schultz, 2011). In response to this tactic,
Republican Senators voted to remove portions of the bill related to appropriating funds thus
eliminating the need for a supermajority vote (Davey, 2011). It took only 30 minutes for the
Senate to approve Act 10 on March 9, 2011 and Governor Walker signed the bill into law on
March 11, 2011.
On that same day, Dane County Executive Kathleen Falk filed a lawsuit alleging an
"open meetings violation by a legislative conference committee, lack of a sufficient quorum by
the state Senate when it voted on the conference committee’s bill and the negative impact the law
would have on local governments" (Dane county judge sumi deciding, 2011, para 2). In
addition, on March 16, 2011, Dane County District Attorney Ismael Ozanne, filed a lawsuit
alleging the enactment of Act 10 violated the state's open meetings law which requires the public
be given at least 24 hours notice of its meeting unless there is good cause to convene a meeting
on shorter notice and even then the public must be given a two hour notice (Trevelen, 2011).
Dane County Circuit Judge Maryann Sumi dismissed Falk's lawsuit on the grounds that Falk did
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not have the standing to bring the action, however, Sumi did rule in favor of District Attorney
Ozanne (Associated Press, Judge dismisses 1 of 3 lawsuits, 2011, para 2). On May 26, 2011,
Judge Sumi ruled that the joint Assembly-Senate conference committee violated the open
meetings law and issued a temporary restraining order preventing the implementation of Act 10
(Treleven, 2011). According to Judge Sumi, "This case is the exemplar of values protected by
the Open Meetings law: transparency in government, the right of citizens to participate in their
government and respect for the rule of law" (Ozanne v. Fitzgerald, 2011, p. 30). In addition,
Sumi stated that it was not the court's responsibility to determine whether Act 10 was good or
bad public policy, but rather the court was responsible for applying the rule of law (Ozanne v.
Fitzgerald, 2012).
In response to Judge Sumi's ruling, state attorneys went directly to the Wisconsin
Supreme Court in June 2011 and requested the Court to step in immediately (Richmond, 2011).
In a 4-3 decision on June 14, 2011, the Wisconsin Supreme Court struck down Judge Sumi's
ruling and Act 10 became law June 28, 2011 (State ex rel. Ozanne v. Fitzgerald, 2011). Soon
after, Union supporters pushed for the recall of Republican senators who voted in favor of Act
10. In August 2011, two Republican senators lost their seats to the recall, but did not lose their
majority in the Senate (Davey, 2011). In June of 2012, Democrats won the Senate majority due
to additional recall votes, but lost this majority after the November 2012 election (Bergquist,
2012; Marly, 2012). Republicans currently hold a majority in the Senate, 18-15, and a majority
in the Assembly 59-39 (Wisconsin Senate and Assembly, 2013). Wisconsin recall laws only
allow recall elections of officials following the first year of service (Election administration
manual for Wisconsin municipal clerk, 2007). As a result, Union supporters postponed efforts to
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recall Governor Walker until Spring of 2012. In June of 2012, Walker survived the recall and
maintained his position as Governor (Fahrenthold & Weiner, 2012).
On June 15, 2011 the Wisconsin Education Association Council (WEAC), along with
several other unions, filed a federal lawsuit alleging Act 10 violated the first amendment and the
Equal Protection Clause of the fourteenth amendment by treating general employees and their
unions differently than public safety employees ("Federal Appellate Court", 2013). WEAC
argued that three provisions of the law discriminated against general employees: (a) limitations
on negotiations for general employees to total base wages, (b) rigid annual recertification
requirements for general employee unions, and (c) prohibition of general employee union dues
deductions from employee earnings ("Federal Appellate Court", 2013). On March 30, 2012,
Judge William Conley ruled that portions of Act 10 were unconstitutional. Judge Conley found
that annual recertification requirements and prohibition of dues deductions violated first
amendment rights and equal protection. Conley sided with Governor Walker and his codefendants and upheld limited collective bargaining negotiations (Wisconsin Education
Association Council v. Walker, 2012). Walker's attorneys appealed Conley's decision and a
three-judge panel of the federal 7th Circuit Court of Appeals issued a new ruling on January 18,
2013. The panel reversed the lower court's decision and ruled that all three provisions were
constitutional. All judges unanimously voted to uphold limited negotiations for general
employee unions and annual recertification requirements. However, in 2-1 decision regarding
payroll deduction of union dues, the dissenting judge sided with the lower court ruling and
indicated there was evidence of a political motive for the provision (Wisconsin Education
Association Council v. Walker, 2013).
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Almost simultaneously, a separate state court lawsuit was filed with the Dane County
Circuit Court by Madison Teachers Inc. and Laborers Local 61 of Milwaukee on August 18,
2011 challenging the way the law was passed, alleging, among other things, that Act 10
unconstitutionally restricted what unions can discuss with municipalities and school districts and
prevents wage increases beyond one year of inflation for union members. On September 14,
2012 Circuit Court Judge Juan Colas issued a ruling overturning provisions of Act 10 (Madison
Teachers Inc. et al. v. Scott Walker et al., 2012). Judge Colas found that Act 10 violated
workers' freedom of speech and freedom of association. In addition, Colas determined that
general employees were subjected to unequal treatment in violation of equal protection laws.
The defendants immediately requested Colas put a hold or stay on his decision during the
appeals process. In October 2012, Judge Colas refused to stay his order and on March 12, 2013,
judges for the Wisconsin State Court of Appeals upheld Colas' refusal to stay that order
(Associated Press, 2013). State Attorney General announced that he will not going the
Wisconsin Supreme Court to review the denial of the request for a stay (Harris & Rohde, 2013).
The defendants have appealed the case and on April, 23, 2013, the plaintiffs have requested a
Dane County judge block Gov Walker and appointees from the WERC from enforcing the labor
law (Higgins, 2013). These legal decisions highlight the conflict inherent in Act 10 and the
willingness of some to challenge the constitutionality of certain provisions.
Conceptual Framework
Act 10 can be viewed through the technical-rational perspective of policy construction
and implementation (Datnow & Park, 2009). Policies that operate from the technical-rational
perspective flow in a deliberate linear path from executives to operatives. In this top-down
approach, policy makers control all aspects of construction and ignore or downplay context. In
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the case of Act 10, voters did not participate in the creation, adoption, or implementation of the
policy. Although one can argue that voters played some role when they elected their
representatives and therefore participated by proxy, the negative response from the public
established their desire to have been more active participants of the policy construction and
adoption process.
Policies that symbolize a top-down approach expect the policy to be implemented just as
it is written without variation. Consequently, local creativity and flexibility are, at best, viewed
as suspect and, at worst, viewed as sabotage. Technical-rational policy makers rarely investigate
political or ideological differences during the construction phase. Authors of Act 10 failed to
research the profound impact of many of the provisions that affected collective bargaining.
Furthermore, when the public brought their concerns to the attention of policy makers, the
majority of the Wisconsin Legislature refused to consider the potential negative implications.
This refusal to involve community members in the policy process, often results in embedded
problematic directives within the policy that ultimately undermine successful implementation.
However, failure of the policy is regularly attributed to faulty implementation rather than poor
design or cultural or contextual variables. One such problem is the prohibition on fair share
agreements and collection of general employee union dues through employee paychecks. It is
reasonable to conclude that this kind of financial loss will have lasting effects on unions' ability
to effectively advocate for members. As an example, in August 2011, a few short months after
implementation, WEAC laid off 40 percent of its workforce (Richards, 2011). In addition,
President Mary Bell and Executive Director Dan Burkhalter revealed that memberships were
expected to drop by 20,000 or 30,000 by the time all school contracts expire (Gunn, 2012).
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Evaluation Design
In an effort to determine the effectiveness of Act 10, a summative evaluation will be
conducted beginning in the spring of 2014 using both quantitative and qualitative methods.
Summative evaluations judge the overall effectiveness to determine whether a program, policy,
or strategy should continue (Patton, 2002). The stated purpose of Act 10 was to balance the state
budget and create a long term budget plan that would not raise taxes or pilfer segregated funds
(Governor walker introduces budget repair (011), para. 3). In contrast to its stated purpose,
certain provisions of Act 10 severely compromised the rights of general employees. Distinctions
between public safety and general employees, union certification requirements, collection of
union dues, and limited negotiations effectively stripped away the collective bargaining rights of
general employees. The following summative evaluation will be designed to assess the impact
of the new collective bargaining laws as it relates to a subset of general employees-public school
educators.
The evaluation will begin with a cursory review of Wisconsin's executive budget before
and immediately after the implementation of Act 10. The current 2013-2015 executive budget
will be reviewed, in addition to a review of the new budget in 2016. The evaluator chooses 2016
as a future check point to allow a full five years to pass from the time of the implementation of
Act 10. The executive budget will be reviewed to determine budget deficit and/or surplus at a
time before, immediately after, and during the implementation of Act 10. More importantly, the
review will include an in depth assessment of the percent of spending for public safety
employees and general employees, paying particular attention to educators.
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The evaluation will then move on to explore the impact of Act 10 collective bargaining
provisions on public school educators. The evaluation will begin in the spring of 2014. Attrition
rates will be collected for the time before and after Act 10 and at the time of the evaluation.
Attrition rates will be reviewed again in 2016. A survey will be disseminated to all certified and
classified educators and county administrators and superintendents through county emails
throughout the state. The surveys will attempt to quantify the effect of the collective bargaining
provisions through a systemic investigation of educator perceptions. The survey instrument will
use a Likert scale with five response options ranging from strongly agree to strongly disagree. A
modified version of the survey will be distributed again in 2016 to allow the researcher to
compare and contrast participants responses.
In addition to a survey, semi structured interviews will take place with individuals who
completed the survey. A team of researchers will be trained by the lead researcher to administer
semi structured interviews. Individual interviews will inform the survey results and add a sense
of authenticity to those results. In addition, interviews will allow the researcher and participant
to discover opinions, attitudes, and perceptions that the survey could not capture. Interview
requests will be sent via email indicating the purpose and approximate length of the interview.
As with the survey, interviews will take place again in 2016 to check in with previous
participants, explore current attitudes, and to gain insight from new participants.
Surveys and interviews with local union presidents will also take place in much the same
way as county school employees. Additionally, interviews will take place with law makers to
explore their perceptions of Act 10 prior to implementation and their current assessment of
implementation. Once the data are collected and analyzed, a comprehensive report will be
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generated to inform stakeholders of the general response to Act 10. More importantly, this
report will be given to policy makers to guide future decisions concerning general employees.
Recommendations
Although the future of Act 10 remains uncertain, general employee unions must adapt to
the current version of the provisions. This process will be made easier by looking to the
negotiation styles of states without mandated collective bargaining. Malin (2012) lists six ways
to navigate the new collective bargaining landscape in Wisconsin: bargain anyway, members
only bargaining, negotiated frameworks for union representation, meet and confer and
consultation, collaborative conferencing, and union financial viability. Act 10 outlawed
negotiations on any subject other than base wages, however, this prohibition does not prevent
bargaining between employers and union representatives. Although agreements reached would
be legally unenforceable, they will most likely be "complied with out of mutual respect and
cooperation" (Malin, 2012). Furthermore, Act 10 does not prevent members only bargaining.
Individuals and/or groups have the right to negotiate and reach agreements with willing
employers.
Wisconsin must negotiate a new framework for union representation and this may be
done through the use of memoranda of understanding between unions and local and government
officials. A memoranda of understanding is not a legally binding agreement but a convergence
of will between two parties who desire a similar outcome. In addition, employers should provide
meet and confer sessions with union representatives with an emphasis on shared decision making
and sincere consideration for union input. Collaborative conferencing is another way employers
and union representatives can reach agreements without violating the provisions against
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collective bargaining. Parties "meet at reasonable times to confer, consult and discuss and to
exchange information, opinions and proposals on matters relating to the terms and conditions of
professional employee service, using the principles and techniques of interest based collaborative
problem-solving" (Malin, 2012). However, unions will have difficulty implementing many of
the aforementioned strategies without financial viability. The prohibition on dues check off and
fair share agreements have the potential to cripple some unions. As a result, union
representatives should be given the right to use official time to perform some representational
duties such as participation in grievance procedures without loss of pay.
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