James Wold

3 July 2015

By James Wold, Marquette University Law School

The following article is the first in what we hope to be a series of articles by a colleague from Wisconsin, James Wold. James is an exchange law student visiting the UK. His time here is likely to coincide with the introduction of the Conservative’s Trade Union Bill. We’ve asked James to compare developments in the UK with experiences in America. In this article, James sets the scene, highlighting the Scott Walker attacks on the collective bargaining rights of teachers in Wisconsin and the labour movement’s response.

The impending trade union bill in parliament strikes a chord in me that is still fresh in my mind. I can not only empathize with the uncertainty of what is to come, but I’ve seen up close and personal what effects austerity brings.

I am a Wisconsinite—born and raised in the state I’ve called home since 1979. My father, uncle and my grandfather (on my mother’s side of the family) all worked for General Motors and were members of the United Auto Workers. I may not have understood all the things they discussed growing up, but I knew about Solidarity and the concept of raising all boats in a high tide.

Our state is known as one of the earliest that engaged in the Progressive Movement, a movement in the early 20th Century that included fixing railroad fares and stricter regulation of insurance companies. In 1911, the legislature created a model worker’s compensation law that protected people who were injured on the job. ¹

Perhaps the most important figure at that time was Robert “Fighting Bob” La Follette, who was governor (1901-06) and served as a United States Senator (1906-1925).² La Follette created the Wisconsin Idea—a platform that included control of government institutions by the voters rather than special interests and that specialists in law, economic, along with social and natural sciences would produce a more effective government.

Many of the New Deal acts during the Depression were drafted by Wisconsin citizens as well as legislation in John Kennedy’s “New Frontier” and Lyndon Johnson’s “Great Society” programs.³ Wisconsin’s history of labor relations in the public sector is even deeper. In 1959, Wisconsin was the first state to create and enact public sector bargaining laws.⁴

That history came to an abrupt halt on February 14, 2011.

Wisconsin republican governor Scott Walker introduced Senate Bill 10, a budget repair bill that limited a state public-sector unions’ ability to collectively bargain with employers over wages, benefits and other work conditions.⁵ Walker stated there was a short-term deficit of around $140 million as of June 30, 2011, and a long-term deficit of nearly $3.6 billion.⁶ Walker believed those deficits would be erased quicker by curtailing public-sector bargaining power.⁷

Yet, I never perceived it as a decision for economic reasons. It struck me as a “smash-and-grab” tactic designed to capitalize on his political situation as the new leader of Wisconsin. More to the point, I felt it was an attack against the lower- and middle-class voters in a baseless manner. What was the need to strip public workers of their collectivization? Numerous sectors, specifically teachers I talked to, said in negotiations they knew cuts were coming and they were prepared for them. Many were blindsided by the decision.⁸

Two elements really stood out—the requirement of annual recertification and an anti-dues checkoff provision—never had anything to do with the budget or cost savings.⁹ Additionally, when Act 10 was finally enacted, the legislature used a procedure that could only be used if Act 10 never had an impact on the state’s fiscal policy.¹⁰

But nothing could have prepared the Republicans for what happened next.

Many Wisconsinites were stunned and angry over the proposal. Demonstrations throughout February and March 2011 took place in the capital city of Madison. As many as 100,000 protestors marched on the state capitol for nearly a week to voice their displeasure.¹¹

At the same time, Democratic members of both the Assembly and Senate in Wisconsin tried their best to stop the bill. In the Assembly, Democrats flooded the floor with proposed amendments to make the Republicans take unpopular votes.¹² Meanwhile, the democrats in the senate had a different strategy. Knowing they needed twenty members to secure a quorum for a vote and there were only 19 Republican senators, the 14 Democrats physically fled to Illinois.¹³

Walker tried to use the state police to bring the senators back, but to no avail. Instead, they devised a new strategy with a new version of the bill that did not have any fiscal provisions with only a majority required for the vote. On March 11, 2001, Walker signed Act 10 into law with all of the same anti-collective bargaining provisions.¹⁴

My state became a battleground of ideas and it actually led to a physical confrontation between members of the State Supreme Court. In June 2011, not long after Justice David Prosser was re-elected (yes, we elect our state judges), a heated argument began over whether the court should uphold an open meetings law violation filed immediately after Act 10 passed. Prosser attempted to physically choke a fellow Supreme Court Justice, progressive justice Ann Walsh Bradley. No charges were filed and the court vacated a lower court ruling blocking Act 10, allowing the legislation to go into effect on June 28, 2011.¹⁵

Walker and the Republicans probably anticipated some of backlash to the decision, but I’m not sure they ever envisaged the response they got. Act 10 unleashed a fighting spirit in unions and democrats that I had not seen in my lifetime. They saw the attack on them and tried to rally around the decision. Within two months of the legislation’s effect, six Republican and three Democratic state senators were the subject of recalls based on their involvement in the bill. While the Democrats held on to their seats, they only managed to win two of the recall elections, which still allowed the Republicans a majority in both houses.

Democrats had to wait a little longer before they could recall Walker, which began on Nov. 15, 2011. Recall supporters only needed 540,000 signatures, but the Wisconsin Government Accountability Board certified more than 900,000 recall signatures.¹⁶

However, Walker survived the recall election with 53.1 percent of the nearly 2.5 million voters (a staggeringly high number of voters for a non-term election in a state of only 5.7 million total citizens).¹⁷

Walker’s popularity has risen significantly since then, winning re-election again in 2014 and is perceived as a presidential candidate for the Republicans in the 2016 campaign.

Meanwhile, he recently signed legislation that continues to erode worker’s rights by making Wisconsin the 25th right-to-work state.¹⁸ Right-to-work is legislation whereby no employee can be required to pay fees to a union. When given an out, many workers simply choose to stop supporting it for a variety of reasons.

Are there lessons from Wisconsin which UK workers and trade unions can use in their respective struggles? I believe there are three key points where Wisconsin made mistakes.

Complacency blindsided us

This is not a blanket statement that union workers were resting on their laurels—it was anything but that. However, labor unions were fighting for so long and getting most of what they wanted that leadership, I think, let their guard down a little bit. I got the sense that since we assumed we were a union state that Wisconsin would always be a union state. Either we did not get the message out effectively regarding unions or we allowed the other side to characterize an issue and frame unions as slow, inefficient and not capable of change.¹⁹ That was Walker’s main argument in the Act 10 legislation, stating repeatedly that not having unions would allow for faster resolution of workplace ideas. Whether that’s true or not is up for debate, but I’m highly skeptical. Once the narrative started changing, not just in Wisconsin but also in Indiana and Michigan, the momentum started building for the other side and they dictated the story better than unions did.

Be quick, but don’t hurry

The second lesson I learned is that labor and the Democrats, in their desire to get rid of Walker and the Republicans, never appeared to have any organization. From the time the petition started to when the recall election was just six months, but seemed so much faster.

I never sensed any sort of collective thinking regarding what to do. People wanted Walker out, but were not on the same page in terms of the reasons why they wanted him out. To their credit, the Republicans were more organized and prepared for handling the election than the Democrats were.

The campaign happened so fast and so close to the 2010 election that Wisconsin voters were subject to the exact same election as they had less than two years earlier—Scott Walker vs. Tom Barrett (Mayor of Milwaukee, the state’s largest city).

Albert Einstein defined insanity as doing the same thing over and over again and expecting different results. That was how I felt about the 2012 recall election.

Additionally, I had a sense of dread (and I can even remember this feeling before the actual recall election). I felt that if Walker won the recall election, he would essentially have a six-year mandate (through 2018). So far, it’s proved true.

In my mind, a better strategy is to think about it in a long-term way. Rather than immediately call for a recall, I would have used three years to politically rally against Walker at every turn, specifically targeting union workers and other union-friendly groups to draw support. By building a stronger campaign around a rallying cry over Act 10, a better candidate may have emerged who captured voters. Instead, Wisconsin voters were left with the exact same choice as before and not much changed. Unions and Democrats had an opportunity, but failed to seize upon it. The analogy I like to draw on is poker. Walker and the Republicans had a made hand. Democrats and unions were so desperate to win, they were willing to go all-in on a draw and lost. Instead, they should have folded and waited for a better hand to come along.

Advantage: UK

In the end, even had unions won the battle and turned back Walker, I’m not sure the war would still be over. Employees in the United States are hired at-will; we can be hired quickly and fired just as quickly. If 100 employees want to strike, I fear that company would just hire 100 people at a cheaper rate and fire the ones that remain on the picket lines. It’s a supply and demand problem when there are more workers that want to work (and in some cases a desperate need to work) and only a few corporations.

We tend to work more hours for less pay and our holiday/vacation packages on average are two to three weeks less than in most of Europe and, specifically, the UK.

That’s where I think trade unions and labour in general are in a much stronger position than in the United States. You have a foothold already, and while it’s been chipped away, it’s still much stronger than it is in the United States. Use that collective spirit and organize a campaign, thinking about the long road. The road may be a bit bumpy the next few years (depending on the trade union bill’s impact), but campaign and push back through the system and set yourself up for the next election where an impact can be made.

The world is changing at a rapid rate—we only need to look to the situation in Greece to see that in action. But if you are active, and not reactive, you can adjust on the fly and shape the next four years in the direction you want it to go and not worry about having it dictated to you.

Wisconsin missed its chance four years ago and we’re paying the heavy price for it now. Learn from our mistakes and, hopefully, the UK will have a much different outcome.

1 Wisconsin Historical Society, Progressivism and the Wisconsin Idea (last updated 2015), http://www.wisconsinhistory.org/turningpoints/tp-036/?action=more_essay↩

2. Id. ]↩

3. Id. ]↩

4. Paul Secunda, The Wisconsin Public-Sector Labor Dispute of 2011, Marquette University Law School, Jan. 1, 2012, at 294. ]↩

5. Id at 293. ]↩

6. Jason Stein & Patrick Marley, Walker Budget Plan Would Limit State Unions to Negotiating Only on Salaries, Milwaukee J. Sentinel (Feb. 10, 2011), http://www.jsonline.com/news/statepolitics/115726754.html↩

7. Paul Secunda, supra note iv. ]↩

8. Joy Resmovits, Wisconsin Teachers React to Gov. Scott Walker’s Newly Signed Budget, Huffington Post (June 27, 2011), http://www.huffingtonpost.com/2011/06/27/wisconsin-teachers-react-to-budget_n_885605.html (“When state workers agreed to make all the financial concessions, and [Gov. Walker] still went forward with his plan to take our voices out of the classroom, it showed what he wanted to do to the people of Wisconsin, not with them.”) ]↩

9. Paul Secunda, supra note iv at 295]↩

10. Id. ]↩

11. See Abby Sewell, Protestors out in force nationwide to oppose Wisconsin’s anti-union bill, Los Angeles Times, (Feb. 26, 2011), http://articles.latimes.com/2011/feb/26/nation/la-na-wisconsin-protests-20110227 ([T]he rally--in steadily falling snow—drew between 70,000 and 100,000 and may have been the largest protest in Madison since the Vietnam War.), see also Jeffrey Sommers, Class War in Wisconsin, The Guardian (Feb. 22, 2011), http://www.theguardian.com/commentisfree/cifamerica/2011/feb/22/wisconsin-tea-party-movement (four days prior, the number of protestors stood at 60,000) ]↩

12. Paul Secunda, supra note iv, at 298. ]↩

13. Id. ]↩

14. Id. at 299. ]↩

15. Id. at 300-301. ]↩

16. Paul Secunda, supra note iv, at 302. ]↩

17. Government Accountability Board – State of Wisconsin, 2012 Recall Election for Governor, Lt. Governor and State Senator, June 5, 2012, http://www.gab.wi.gov/sites/default/files/Statewide%20Percentage%20Results_6.5.12%20Recall%20Election_PRE%20SEN21%20RECOUNT.pdf. ]↩

18. Steven Greenhouse, Wisconsin unions fight controversial ‘right-to-work’ law in court filing, The Guardian, March 11, 2015, 17:15 GMT, http://www.theguardian.com/world/2015/mar/11/wisconsin-unions-challenge-right-to-work-law]↩

19. Ned Resnikoff, How Scott Walker won by dividing and conquering Wisconsin unions, March 9, 2015, http://america.aljazeera.com/articles/2015/3/9/how-scott-walker-won-by-dividing-and-conquering-wisconsin-labor.html (“HIs victories offer a lesson to policymakers in other states: If you intend to hobble the labor movement as a whole, go after the public sector unions first.”) ]↩