Recent Developments at the
Wisconsin Employment Relations Commission

Presented by Peter G. Davis
WERC General Counsel
at the Labor & Employment Law Section CLE Luncheon
April 1997

The views expressed in this presentation are those of the speaker and not necessarily those of the Wisconsin Employment Relations Commission.

Current Commission Composition

*Assumed Commissioner position 3/31/97; Senate confirmation pending.

1997-1999 Budget Issues
Governor's budget proposes deletion of three attorney positions effective July 1, 1997, due to declining agency caseload.

Agency has experienced a recent substantial decline in mediation/interest arbitration cases and, to a lesser extent, grievance arbitration cases.

Probable causes:

Filing Fees
(Amounts listed as Pre-1996 and Current)

The $25 complaint filing fee must be paid by the party filing the complaint.

By law, filing fees for all other cases are to be split evenly between parties. Upon receipt of the case materials and $125, the Commission will begin processing the case and invoice the other party $125 for their share of the filing fee.

Filing fees must be paid by both parties even if a case is ultimately settled. The Commission will pursue collection of unpaid fees.

Panel Methodology
Agency produces approximately 600 grievance and interest arbitration panels per year.

Impact of New 111.70(4)(cm) Interest Arbitration Criteria

Impact of QEO Law on Level of Voluntary Settlements
Substantial majority of settlements reported as 3.8% total package each year.

Commission Decisions

Kuehl Electric, Dec. No. 27854-B (WERC, 8/96)
Union seeks to arbitrate grievance. Employer advises Union that Employer no longer exists; that it no longer has any contract with Union and that it will not participate in any arbitration proceeding.

Union proceeds to arbitrate grievance ex parte, obtains a favorable award, and Employer refuses to comply. Union sues under Sec. 111.06(1)(f), Stats.

Commission affirms Examiner's conclusion that Union was obligated to have a court or administrative tribunal determine whether arbitration clause remain in effect as to the grievance (i.e., a forum other than arbitration must resolve disputes over whether the parties intended to allow arbitration to decide an issue).

Commission concludes it is inappropriate to resolve the arbitrability issue now because to do so would encourage the improper sequence of dispute resolution followed by the Union. Commission indicates Employer had no obligation to initiate a judicial proceeding to obtain resolution of the arbitrability issue it had raised or to appear at the arbitration to preserve its defense.

Extensive quote from First Options of Chicago, Inc. v. Kaplan, 115 S.Ct. 1920, 514 U.S.____, (1995) for unusually clear recitation of distinction between issues which are appropriate for an (1996) arbitrator to decide and those which are not.

Complaint dismissed. Award unenforceable.

La Crosse County, Dec. No. 28773 (WERC, 6/96)
Proposal requiring County to enroll jailers as protective occupation participants in Wisconsin Retirement Fund primarily relates to wages but irreconcilably conflicts with the statutory process by which such status is established under Chapter 40 of the Wisconsin Statutes and Chapter ETF of the Wisconsin Administrative Code.

Premontre High School, Dec. No. 27550-E (WERC, 6/96)
Respondents waive any jurisdictional objections. Commission asserts its jurisdiction under this circumstance but explicitly states that its decision on the merits should not be viewed as indicative of how jurisdictional issues would be resolved in a future case.

City of Hartford, Dec. Nos. 28874, 28873 (WERC, 11/96)
INT/ARB and MIA investigation procedure issues.

Investigations are closed at 4:30 p.m. on the date the Notice of Close is placed in the mail (when delivered in person, the investigation is closed upon actual receipt by a party).

Office receipt of FAX or telephone message prior to 4:30 p.m. on the date the Notice of Close is placed in the mail which indicates a party's interest in modifying an existing offer is sufficient to require that investigation remain open, Actual knowledge of investigator is not necessary. See Kenosha County, Dec. No. 28640 (WERC, 1/96).

Question of whether it is ever appropriate to close investigation even when investigator is aware of party's desire to modify offer is left unresolved. If ever appropriate, at a minimum, investigator must have "dotted all the i's" and the other party to the investigation must not have modified its offer in the recent past. Here, the union modified its offer on August 2 and the investigator established an August 14 deadline for any responsive change.

Brown County, Dec. Nos. 28158-F, 28159-F (WERC, 12/96)
Employer follows its unsuccessful unit clarification effort to remove employees from unit as supervisors by giving employees additional supervisory responsibility. Commission concludes that although there generally is a duty to bargain over the addition of job duties which are not fairly within the scope of an employee’s existing job responsibilities, employer need not bargain over the addition of duties which may remove the employee from the bargaining unit if it has legitimate operational needs for the addition.

Employees received a wage differential based on supervisory status. Employer withholds a pay increase which would maintain the differential pending outcome of unit clarification in which the employees' supervisory status is being litigated and then does not provide the increase when it loses the unit clarification. Employer would have paid differential retro if it had won the unit clarification. Commission finds no interference. Commission acknowledges that County conduct can be viewed as having a reasonable tendency to interfere with resort to the Commission's processes but finds that the County's justification for the delay and ultimate denial is valid business reason for the action which, in turn, warrants a finding of no interference. Employer conduct also does not violate status quo as to wages.

Waukesha County Technical College, Dec. No. 28952 (WERC, 12/96)
Employer was not obligated to bargain over a proposal which would give qualified unit employees the right to job assignments primarily performed by non-unit employees.

Rock County, Dec. No. 28494-B (WERC, 11/96)
Motion to intervene in complaint proceedings is untimely when filed after issuance of Examiner's decision where party wishing to intervene had prior knowledge of the complaint and hearing.

Right to file petition for review of Examiner's decision is limited to parties to the proceeding. Thus, party seeking to intervene has no independent right to file a petition.

Rock County, Dec. No. 9423-A (WERC 2/97)
Parties in representation proceedings are entitled to take alternative positions.

Shawano County, Dec. No. 28250-B (WERC, 2/97)
County was not obligated to bargain over the abolition of a unit assistant position in a two person register in probate office and creation of a unit Deputy position.

County properly concluded that posting/job security provisions of existing contract did not apply to the Deputy position given Secs. 851.71(l) and (2), Stats. No harmonization possible.

City of River Falls, Dec. No. 29009 (WERC, 2/97)
Employer was not obligated to bargain over the proposal which would maintain an existing practice of on-duty officers giving rides to and from home to other officers at the beginning and end of shifts.

MATC, Dec. No. 28854 (WERC,9/96)
Discussion of union's burden of proof as to fair share expenditures.

To meet its burden of proof in such disputes, a union must be able to establish that it spent the amount it claims it did for various purposes, and that it correctly applied the law when it allocated various expenditures as chargeable or non-chargeable. It can seek to do so through the testimony of union employees and presentation of union records, and/or through the testimony and records of an independent auditor who has (or whose firm has) reviewed the union's expenditures. However, it should be emphasized that the Commission remains the ultimate decisionmaker as to all issues of fact and law. Thus, for instance, while it is appropriate and relevant for an auditor to testify as to the legal standards utilized for the purposes of an audit, the same cannot be said of an auditor's testimony that those legal standards comport with applicable fair share law. It remains the Commission's role to make that determination.

Milwaukee County, Dec. No. 28063-C (WERC, 3/97)
Employer committed interference violation by requiring a union steward to go through an approval process for conducting union business which was inapplicable to all other stewards.

Village of Saukville, Dec. No. 28032-B (WERC, 3/96)
Employer violates its duty to bargain by subcontracting work during a contract hiatus. Commission rejects employer's assertion that operational savings constituted a valid "necessity" defense.

Sun Prairie Schools, Dec. No. 28676 (WERC, 3/96)
Availability of interest arbitration to resolve bargain impasse when positions are added to an existing unit during the term of a contract.

Pending Commission Cases of Interest

This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is {http://werc.wi.gov/outline_of_recent_developments_april_1997.htm}. Last modified on 15 AUG 1998. Comments, questions and suggestions.