Public Union Wins|Injunction in Milwaukee

MILWAUKEE (CN) - A state judge has temporarily prevented the transfer of 300 Milwaukee County Health & Human Services jobs to the state, taking a union's side that the county failed "to apply and use the Civil Service Rules regarding layoffs, bumping, and retirement."

With the extension of an injunction issued in September, AFSCME, the public employees union, is a step closer to preserving its workers' rights to their income, benefits and seniority privileges.

Milwaukee County Judge William Pocan's ruling applies to 75 unionized workers at the Department of Children and Families.

In his 14-page ruling, Pocan said three factors determined whether he would issue a temporary injunction: Did the union show a reasonable probability of success on the merits; did the union demonstrate lack of an adequate remedy at law; and did the union show likelihood of irreparable harm if the status quo were not preserved.

Pocan said the union proved all three.

The judge wrote that the language in the 2007-2008 collective bargaining agreement is "plain." Under that agreement, Milwaukee County is bound to "make every effort to insure that the successor agency ... adopt[s] and maintain[s] in force the present wages, hours and conditions of employment to which the affected employees are entitled under the existing bargaining agreement." (Brackets in ruling.)

During oral arguments, the union claimed that the collective bargaining agreement did not end in December 2008, as Milwaukee County claimed, and that the county did not act in good faith with regard to any successor agreement.

The county claimed its collective-bargaining agreement with the union ended in 2008 and no successor agreement was in place.

Deputy County Counsel Mark Grady said that regardless of whether an agreement was in place, Wisconsin law supersedes any conflicting local ordinances.

Judge Pocan disagreed: "A conflict with one provision of the [collective bargaining agreement] will not invalidate the entire agreement."

Although it is clear that state procedures were to be followed once the county jobs became state-supervised in 2009, the agreement contains this "savings clause": "If any article or part of this Memorandum of Agreement is held to be invalid by operation of law or by any tribunal of competent jurisdiction, or if compliance with or enforcement of any article or part should be restrained by such tribunal, the remainder of the Memorandum of Agreement shall not be affected thereby and the parties shall enter into immediate negotiations for the purpose of arriving at a mutually satisfactory replacement for such article or part."

The union's argument that the collective bargaining agreement still exists was bolstered by three supplementary Memoranda of Understanding that were adopted subsequent to the original memorandum. Pocan wrote that these supplements made it clear that "it was never the parties' intent to have union employees completely abandon their rights under the Civil Service Rules and Memorandum of Agreement."

Pocan added that while the intention of workers' rights is clear, the language of the memoranda is often ambiguous. He wrote that because of the "multiple layers of agreements entered into between the County, the State, and the Union," he used Milwaukee County's application of the 2007-2008 collective bargaining agreement in its underlying grievance suit.

The county sued after the Wisconsin Employment Relations Commission determined that it had bargained in bad faith.

Pocan asked, if the bargaining agreement were not in place, why did Milwaukee County follow its grievance procedure in September this year?

He used the county's past practices as extrinsic evidence to determine intent and to help answer his three questions.

Pocan said, "there is a reasonable probability that such bargained-for rights could be a benefit which the County has a longstanding history of affording to its employees pursuant to collective bargaining agreements." Therefore, the union has shown a reasonable probability of ultimate success on the merits of its case.

Pocan added that "if the Union ultimately prevailed, in the absence of a temporary injunction, it would be difficult to provide the Union with adequate remedies to their income, benefits, and exercise of their seniority rights." So the union demonstrated the lack of an adequate remedy at law.

Finally, Pocan determined that though there may be no evidence that any of the union's employees were actually laid off, such harm "is threatened or imminent." Therefore, the union showed irreparable harm if the status quo were not preserved.

A scheduling and status conference to determine the next steps is scheduled for Dec. 1.

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