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On April 19, the Wisconsin State Journal published a new administrative rule signed by Governor Scott Walker specifying “how to calculate the maximum dollar amounts available for bargaining over base wage increases for general municipal employee bargaining units and for general state employee bargaining units.”
This rule was drafted by the Wisconsin Employment Relations Commission to guide public agencies and school districts in implementing the provisions of Act 10, which eliminated public employees’ rights to collectively bargain work contracts for anything other than cost of living increases in “base wages.”
While the rule in question applies to all public sector employee unions covered by Act 10 (police, firefighters and bus drivers are exempt), it is mainly relevant to teachers, some nurses, or any professional whose salary is stepped up by levels of higher education and numbers of post-graduate credits earned. For those people, the basis for any potential cost of living raise will be calculated not on the actual salary they earn that may include steps for higher education, but rather on the salary for that position at the lowest rung of the schedule.
Furthermore, the contract itself may only contain the “base wage” agreement. This does not prohibit employers from making side agreements with employees about bonus pay for levels of education and seniority, but it does make it more onerous.
On Tuesday April 24, Jud Lounsbury posted a blog at Uppity Wisconsin about this rule containing a partial transcript of a radio interview of AFSCME Council 24 President Marty Beil. He was quoted as saying, “What's happening here, in terms of the administrative rule that was promulgated that actually cuts salaries, you know, in essence, the little bit of bargaining that was there has been taken away.” He went on to say, “teachers or other employees who are on either educational grids or seniority grids will have, basically, those stripped away resulting in incredible losses of pay.. 30-40-50% loss of pay-- that's incredible!”
This interview and article set off a firestorm of concern and panic amongst teachers and other public workers. Rumors were flying around social media networks that Scott Walker had just cut every public school teacher’s pay by 30%. This is obviously not true, since public school teachers are hired by local school districts and not by the governor.
So if the rule doesn’t cut teachers’ pay, what does it actually mean? And why does there have to be a rule in the first place?
What the rule does is implement Act 10. It is nothing really new, and it is not even all that meaningful in itself given the fact that Act 10 also completely eliminated interest arbitration as part of the collective bargaining process (or what is left of it). This means that unions and employers can "bargain" all they want, but at the end of the day, the employer has the upper hand and can, by law, unilaterally determine wages so long as they can say that they went through a bargaining process.
According to Peter Davis, General Counsel of WERC, the real story here is the provision of Act 10 that eliminates interest arbitration in the event of a stalemate in contract negotiations, not the new rule that determines what base pay is. Without recourse to arbitration, there is nothing stopping the employer from setting wages at whatever level they want—rule or no rule. “We’re dancing around the deck of the Titanic talking about (the new rule),” said Davis. He added, “The ship sank with Act 10 and now we’re worried about who gets the life preservers.” (See video of my interview with Davis here.)
The larger context of Walker’s unprecedented, intentional under-funding of public education and the elimination of workers rights to bargain meaningfully about working conditions, benefits and pay continues to be the huge issue. In classic “Starve the Beast” and pass-the-buck fashion, by promulgating this rule within this context, Walker is devolving responsibility for the hard decisions down to the local level.
Or in Walker’s own words, he’s giving schools districts the “tools” they need to manage the false financial crisis his own budget — and to some extent a flawed school funding formula that long predated him — plunged them into. The new administrative rule sets up school districts for the possibility that they could decide to cut teacher pay by 30% (or more), but they didn't need the rule to do that. As Peter Davis pointed out, it’s more likely that school districts will lay off employees before dishing out those kinds of pay cuts.
Last November, Scott Walker signed Executive Order #50. This order created the Office of Regulatory Compliance within the Department of Administration that pre-screens all proposed administrative rules.
The ORC is like the secular version of the Congregation for the Doctrine of the Faith, previously known as the Congregation of the Roman and Universal Inquisition. Bills are passed by the legislature, signed into law by the governor, and then must be administered and/or enforced by various state agencies. In order to administer and/or enforce these laws, agencies must write rules based on existing state statute and their best interpretation of the intent of that law. The ORC is there to ensure that the agencies interpret that intent in a politically and ideologically correct manner by “pre-authorizing” proposed rules.
In a written opinion dissenting against her own agency’s rule, Wisconsin Employment Relations Commissioner Judy Neumann criticized the new rules process under Act 21, saying that the extended period requiring pre-authorization by the ORC is inefficient and, “weakens the effectiveness of any eventual public input.” She also raised issues of substance in her dissent, citing technical difficulties and inconsistencies in the changes to the original rule that the Walker administration requested. Neumann closed her opinion with, “This is a classic case of the Administration wanting to have its cake and eat it, too.”
Rebecca Kemble is an Anthropologist who studied decolonization in Kenya. She serves on the Board of the US Federation of Worker Cooperatives and is a founding member of the Wisconsin Citizens Media Cooperative.