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Judge Hears Arguments in Wisconsin Union Fight

MILWAUKEE (CN) - AFSCME, the public employees union, told a state judge Monday why he should bar Milwaukee County from turning over 373 Health & Human Services jobs to control of the state. The oral arguments were a skirmish in Wisconsin's frontal attack on the rights of public employee unions.

The 373 county workers have been supervised by the state since 2009, but remained county employees and received county medical insurance, paid holidays, pensions and other benefits.

On Monday, Milwaukee County Judge William Pocan told attorneys for the county and the union that he needs to answer four questions to rule on the union's request for injunctive relief:

Is arbitration mandated by the union agreements?

What collective-bargaining agreements do both Milwaukee County and the union say are to be applied, and are past practices to be considered?

How does Act 10 (Gov. Scott Walker's so-called Budget Repair Bill) apply?

And, are the employees technically laid off?

The plaintiffs - Milwaukee District Council 48, Local 594, American Federation of State, County & Municipal Employees, AFL-CIO - sued Milwaukee County on Sept. 30.

The union was represented by Mark Sweet in Monday's oral arguments, the county by its Deputy Counsel Mark Grady.

Sweet said it is the union's position that arbitration is mandated and compelled. He asked the court to order arbitration, and enjoin the transfer of the employees while arbitration is pending.

"Arbitration is not optional," Sweet said, neither under labor law nor under agreements in place with the county and with the state.

Sweet asked Pocan to send the case to a Permanent Umpire. He said the crux of the case is to maintain the benefits the 373 employees stand to lose, including the "most basic benefit" of seniority.

Deputy County Counsel Grady countered that Milwaukee County's collective-bargaining agreement with the union ended in 2008 and no successor agreement is in place.

Sweet responded: "For all practical purposes, the 2008 collective-bargaining agreement would have actually continued to 2010 had there been good faith bargaining [by Milwaukee County]."

Sweet said the agreement with the state was intended as a supplement to the County's Memorandum of Understanding, and that that agreement "with all benefits intact" does not expire until Dec. 31.

Both attorneys cited collective-bargaining agreements between the union and Milwaukee County, and between the union and the state.

Sweet also cited Civil Service rules, which he said the county is violating, by terminating the Civil Service rights of the affected workers.

The union is fighting transfer to state control because of the Walker administration's hostility to public employees unions. Act 10, the so-called Budget Repair Bill, killed public employee unions' rights to negotiate for anything but salary, and imposed rules making it harder to keep a union certified and easier to break up.

Pocan asked Sweet what role Act 10 plays in the dispute, and Sweet responded that Act 10 does not apply, because the bill "made clear it did not affect agreements already in existence," and his clients' agreement, he said, do not expire until Dec. 31.

But Grady insisted there is no agreement in place, and said that even if there was, it would have expired at the end of 2010. He said the state has all the management rights as the employer.

"These employees do not have two employers," Grady said, adding that state-supervised employees are managed by state procedures.

As far as the impact, if any, Act 10, Grady said, "All this went away with the implementation of Act 10," which "changed the nature of bargaining."

Under Act 10, he said, unions can bargain only over base wages. Anything else, grievance procedures included, is prohibited.

"We couldn't even bargain ... if we wanted to," Grady said.

Grady added that if the judge decides that arbitration is required, then he should dismiss the case, because all "legal, adequate remedies" can be pursued there.

In response to Pocan's final question - is the reclassification really a layoff? - Sweet said it is indeed, and the employees' benefits must be restored because the layoff violates the bargaining agreements.

Grady disagreed. He said that under county rules, a layoff is the "severance of an employee." He said the county does not believe a layoff occurred, but called that issue a "minor, not major point."

In his final words to the judge, Grady said, "There is no bargaining process to preserve. ... State statutes always trump county ordinances. ... The most this court should do is order arbitration. There is no reason for an injunction, especially since it doesn't apply per Act 10."

Sweet said that Grady "misled the court" and was not "straightforward" about the rights the agreements were intended to preserve. He said the case arose from a benefits issue that will cause irreparable harm if implemented. That's why the union seeks an order for arbitration and an injunction while arbitration is pending.

Pocan said he has not completed an in-depth analysis yet, but expects to issue a written ruling in "a few weeks."

He said that his interpretation of the temporary restraining order granted by another judge on Oct. 11 was that both sides are to keep things "status quo" with "no action taken either way" until he rules.

He said that any action on either side with regard to seniority bumping or denial of an application will be at the risk of the actor that does so.

The jobs at issue are in the Milwaukee County Department of Health & Human Services Income Maintenance Program, which handles food stamps, child care programs, medical assistance, Social Security Income burials and other programs for the county.

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