Outline of Recent WERC Developments -- April 29, 2010


Presented at Sixth Annual Werc Public Sector Labor Relations Conference

By Peter G. Davis- WERC General Counsel **

 

 

** The speaker’s remarks do not necessarily reflect the views of the WERC. Questions? Contact Peter Davis at 608 266-2993 or peterg.davis@wisconsin.gov.


I.   Agency Update

Chairperson Judy Neumann-confirmed for a term expiring March 2013.

Commissioner Paul Gordon-confirmed for a term expired March 2009.

Commissioner Sue Bauman-confirmed for a term expiring March 2011.

 

Sixteen attorneys (11 in Madison and 5 out state) and 4.5 support staff.

 

Hiring of John Carlson and Matt Greer

 

Stuart Levitan- Part-time

 

Proposed Administrative Rules-see http://werc.wi.gov.

 

Office Closures due to Furloughs (view list )

 

WERC receives two new tax funded attorney positions 7/1/2010 but may not fill due to other budget cuts and caseload decrease.

 

 

II. Recent Statutory Changes

 

2009 Wisconsin Act 28 (the budget bill) made many changes to statutes administered by WERC (view list) including:

 

            -End of QEO for contracts beginning July 1, 2009.

            -Elimination of “Greatest” and “Greater” weight factors for school employee

            interest arbitration effective with contracts entered into on or after July 1, 2009.

            -Right of school district employees to combine bargaining units.

            -School district employee bargaining agreements can be for a term of 4 years.

-Creation of University of Wisconsin System Faculty and Academic Staff Labor   Relations Act.

-Authorization for representative status as to UW research assistants to be obtained by authorization cards.

-Home care providers (approximately 5000) become state employees for the purposes of collective bargaining.

-Day care providers become private sector Wisconsin Employment Peace Act employees for purposes of collective bargaining with the state and counties indentified as the employer.

 

2009 Wisconsin Act 21 (view text)-effective June 23, 2009-makes it illegal for: (1) a municipal employer to fail to follow a contractual fair-share provision during a contract hiatus; and (2) a municipal employer or union to fail to follow a contractual grievance arbitration provision during a contract hiatus.

 

2009 Wisconsin Act 34 (view text) makes preparation time in school districts a mandatory subject of bargaining effective with contracts beginning July 1, 2011.

 

III. Recent WERC Decisions

 

WAUSHARA COUNTY, DEC. NO. 30222-B (WERC, 3/10)

 

Where three paralegals in the Corporation Counsel’s office interchangeably share a limited amount of confidential labor relations work, only one paralegal is a confidential employee. The other two paralegals are added to the bargaining unit. If employer wishes to shield the two unit paralegals from confidential labor relations information, that can be accomplished without undue disruption.

 

ELKHART LAKE-GLENBEULAH SCHOOL DISTRICT, DEC. NO. 27370-C (WERC, 3/10)

 

Employer gives former bargaining unit Head Custodian sufficient authority as to hiring, discipline, evaluation and direction of work of seven employee to make him a supervisor.

 

MILWAUKEE COUNTY, DEC. NO. 32728-B (WERC, 1/10)

 

Employer violated its duty to bargain by refusing to provide union with disciplinary files of a bargaining unit employee which union sought for purposes of determining whether it had a disparate treatment argument in an upcoming grievance arbitration proceeding.

 

FLORENCE COUNTY, DEC. NO. 32435-C (WERC, 1/10); WEST SALEM SCHOOLS, DEC. NO. 32696-D (WERC, 10/09) see also WAUKESHA COUNTY TECHNICAL COLLEGE, DEC. NO. 32785-B (WERC, 12/09); MILWAUKEE COUNTY, DEC. NO. 32572-B (Davis, 11/09)

 

In context of pre-hearing motion to dismiss, prohibited practice/unfair labor practice complaints will only be dismissed if even under a liberal interpretation of the content of the complaint itself, a timely claim as to which WERC has jurisdiction has not been raised.

 

STATE OF WISCONSIN, DEC. NO. 32689-C (WERC, 12/09)

 

Employee’s discharge was not based on any hostility toward his lawful concerted activity but rather on his failure to heed instructions regarding use of internet on work time.

 

CITY OF MENASHA, DEC. NO. 32918 (WERC, 12/09), appeal pending CirCt.

 

Sections 111.70(4)(c)2.b. and (4)(mc), Stats., make it a prohibited subject of bargaining for the employer to propose no access to grievance arbitration to resolve disputes over discipline imposed pursuant to Sec. 62.13, Stats.

 

MILWAUKEE COUNTY, DEC. NO. 32590-B (WERC, 11/09)

 

Employer conduct did not demonstrate a refusal to comply with a prior grievance arbitration award.

 

WINNEBAGO COUNTY, DEC. NO. 32468-C (WERC, 10/09)

 

Employer violated duty to bargain with union when it attempted to obtain a “last chance” agreement from an individual employee without the knowledge or acquiescence of the union.

 

MADISON SCHOOLS, DEC. NO. 32419-B (WERC, 8/09)

 

The impact of the Employer’s purported end of contract renunciation of a past practice (which was pivotal to the result in a prior grievance arbitration award) was not a matter resolved by the prior award and thus the Employer’s subsequent conduct (which would have violated the arbitrator’s award had it occurred during the term of the agreement the arbitrator was interpreting) was not a refusal to accept a grievance arbitration award in violation of Sec. 111.70 (3) (a) 5, Stats. WERC notes that the practice in question was “contractual” unlike the “non-contractual” practice at issue in DODGELAND, DEC. NO. 31098-C which the WERC concluded could be repudiated upon proper notice effective with a successor agreement.

 

STATE OF WISCONSIN, DEC. NO. 32239-B (WERC, 8/09)-appeal filed.

 

Where the Employer has decided there is enough evidence to require the employee to attend a pre-disciplinary due process Loudermill hearing, WERC concludes that Employer violated its duty to bargain obligation to provide information relevant and reasonably necessary to administration of the collective bargaining agreement by its blanket denial of the Union’s pre-hearing request for the Employer’s investigative file. 

Employer could have redacted or otherwise limited the required disclosure if it had demonstrated confidentiality concerns specific to the particular situation.

 

STATE OF WISCONSIN, DEC. NO. 32392-B (WERC, 5/09)

 

In the factual context of the disciplinary investigation in question, the Employer violated the employee’s statutory right to engage in concerted activity by issuing (and enforcing) a directive to employee being investigated that she not talk to fellow employees until investigation is completed. WERC balanced the interests of employer in the integrity of the investigation against right to engage in concerted activity and concluded the employer’s interest was not strong enough to excuse the interference with the employee’s statutory rights. WERC noted that such a prohibition may be appropriate in other fact situations.

 

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This page constitutes a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is http://werc.wi.gov/outline_recent_developments_april_2_2004.htm . Last modified on 10 MAY 2010. Comments, questions and suggestions