Not so fast on new Milwaukee Teacher contracts

Rick Esenberg:

The MPS teachers’ union wants to negotiate a new contract. They think that contract need not be compliant with Act 10 because of a Dane County circuit court decision holding that the law is unconstitutional. As I have written before, that decision does not create a window of opportunity to violate Act 10. Whether or not the union will ultimately be able to avoid Act 10 will depend on the decision of a higher court – almost certainly the Wisconsin Supreme Court.
If that court concludes that the Dane County circuit court was wrong – a conclusion that is highly likely – then any new contract that violates Act 10 will be unlawful and presumably void.
Moreover, the fact that a single circuit court judge in Madison thinks the Act is unconstitutional will have exactly no impact on the deliberation of higher courts. Lower court decisions are entitled to deference when they involve factual findings or the exercise of discretion. The decision holding Act 10 to be unconstitutional involved neither and is subjected, as lawyers like to say, to de novo
Negotiating a new contract would be even more problematic than that. The attorney for the plaintiffs in the Dane County case seems to think that a municipality that does not agree to negotiate terms that are forbidden by Act 10 would be engaged in an unfair labor practice. In his view, the Wisconsin Employment Relations Commission – to whom such charges are initially directed – would be bound by the circuit court decision because its members were defendants in the case.
But there are at least two problems with his argument. First, it us unclear that WERC, in its capacity as a tribunal, can be bound by a declaratory judgment in adjudicating the rights of a party who is not itself bound by that judgment. For example, if the Mequon-Thiensville School District is charged with an unfair labor practice for complying with Act 10, it was not a party to the case finding it to be unconstitutional. The question is one that only a civil procedure professor (and I’ve been one of those) could love.