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Outline of Recent WERC Developments -- April 16, 2004


Presented to Labor and Employment Section

State Bar of Wisconsin

By Peter G. Davis, WERC General Counsel***

April 16, 2004-Milwaukee

April 23, 2004-Madison

I. Agency Update

A. Commission Composition

Chairperson Judy Neumann –confirmed for a term expiring March 2007.

Commissioner Paul Gordon –confirmation pending for a term expiring March 2009.

Commissioner Sue Bauman –confirmed for a term expiring March 2005.

B. Resources

To avoid further reduction in staff resulting from 2003-2005 State budget, WERC doubles existing filing fees (now $80 for complaint cases and $500-split equally between Employer and Union- for grievance arbitration, mediation, interest arbitration and fact-finding cases). Five of WERC’s 23.5 employees now funded by filing fee income.

Eau Claire and Wausau offices closed.

Kurt Stege (formerly General Counsel of the now defunct Personnel Commission) hired as a project employee to assist in processing new civil service caseload

C. Status of Comprehensive Administrative Rule Revisions

Close to finish line.

D. Web Site

*** Speaker’s remarks do not necessarily represent the views of the WERC.

II. Case Law Update


The Commission affirmed the hearing examiner’s conclusion that the Hospital interfered with the employees’ right to engage in lawful concerted activity by ending Union access to Hospital e-mail system.

Commission balances the nature and weight of employee and employer interests and concludes that employee interests predominate. Legitimate Hospital interests in avoiding interference with productivity and protecting integrity and functioning of e-mail system found to be of little weight because Hospital terminated access only after Union e-mail to employees accusing Hospital of using "union busting" tactics during bargaining, Hospital continued to allow other outside access, and Hospital generally allowed personal use of its e-mail system.

Commission notes that use of e-mail is potentially less disruptive to the workplace than telephone access.

RACINE SCHOOLS, DEC. NO. 29074-B (GRATZ, 4/98) AFF’D DEC. NO. 29074-C (WERC, 7/98) cited as an example where productivity concerns justified a measured limitation

on employee protected activity when employer restricted employee telephone use.


The Commission affirmed the hearing examiner’s conclusion that the County had refused to bargain in good faith by unilaterally implementing several changes in the health insurance plan during the pendency of an interest arbitration petition. The Commission partially revised the examiner’s remedy. The County had proposed several changes in the plan, including changes in the premium, the co-pays, and the deductibles. After one mediation session, the County filed a petition for interest arbitration on December 20, 2002. On the same date, it informed bargaining unit employees that it would be implementing various changes in the health insurance plan effective January 1, 2003. The union protested the unilateral change and also objected to a finding of impasse as long as the County’s unilateral changes were in place; the Commission ultimately rejected the union’s contention and the parties proceeded to interest arbitration. The parties’ final offers as presented to the interest arbitrator were identical regarding health insurance and substantially consistent with the changes the County had unilaterally implemented. The Commission applied its Green County rule (Dec. No. 20308-B, 11/84) and concluded it was unlawful for an employer to implement unilateral changes in mandatory subjects of bargaining, even if the changes were consistent with both parties’ proposals in interest arbitration. The Commission refused to apply the reservation in Green County that might permit such unilateral implementation if the other party’s conduct had caused "unlawful abusive delay," finding that the union had not unlawfully or abusively delayed the process and moreover any delays the union caused occurred after the unilateral implementation and hence could not justify it. As to remedy, the Commission largely affirmed the examiner’s order regarding make-whole relief (out of pocket losses attributable to the changes up to the date of the interest arbitration award). However, the Commission reversed the examiner’s order to restore the status quo, since that could be disruptive under the specific circumstances of this case and since the interest arbitration award would inevitably reinstate the same health insurance changes.


The Commission overturned its previous holdings in Door County, Dec. No. 27158 (WERC 2/92) and Superior School district, Dec. No. 30347 (WERC, 5/02), and decided that its rules regarding objections to proposals in final offers required the Commission’s investigator to direct the filing of "written objections," and that a party could not inadvertently trigger the 10-day time period for filing declaratory ruling petitions simply by stating an objection in written form. In this case, the employer had stated its objection in an e-mail. When the employer eventually filed its petition for declaratory ruling, the union moved to dismiss the petition for not being filed within ten days of the e-mailed objection. The Commission refused to dismiss.


The Commission partially overturned an examiner’s dismissal of a case that alleged that the City had reneged on an agreement, pursuant to which the complainant had been terminated, and that the union had breached its duty of fair representation by failing to enforce the agreement. The examiner had found the matter untimely because the agreement had been entered into almost two years earlier than the complaint was filed. The Commission affirmed the examiner’s conclusion that allegations about the unlawfulness of the agreement itself were untimely. However, the Commission concluded that the complainant allegations the City failed to abide by the agreement and the Union’s failure to grieve the City’s breach could be timely, depending upon when the complainant knew or should have known about these violations. Moreover, the complainant was constructively an "employee" for purposes of raising these claims, despite her termination, because she could argue that the employer’s breach of the agreement, by which she had been terminated, would invalidate her termination. Discussion about "continuing violation" doctrine included.


The Commission affirmed the hearing examiner’s conclusion that the Village had extended a firefighter’s probation and subsequently terminated him because of his involvement in grievance activity surrounding safety and staffing concerns. The Village’s Director of Public Safety had responded to the firefighter’s attempt to file a grievance with the remark, "You’d better think about your position here before you file this." The Commission concluded that the remark was itself a threat prohibited by Sec. 111.70 (3)(a)1, and also constituted evidence along with other factors that the Village’s decision to extend the firefighter’s probation some nine days later was in retaliation for his protected activity. A couple months later, after discovering certain documents that the firefighter had drafted and that the Commission found to be protected activity, and after learning that the Union and the firefighter planned to bring a prohibited practice charge against the Village, the Director terminated the firefighter’s employment. The Commission held that the termination was unlawful retaliation under Sec. (3)(a)3. Finally, the Commission refused to accept the Village’s claim that reinstatement was inappropriate based upon the Village’s "after acquired evidence" that the firefighter may have been visually disabled. The Commission restated its CLARK COUNTY rule (see the following case note) that it would not limit its traditional remedies based upon proffers of after-acquired evidence. Instead it noted that, after reinstating the firefighter, the Village could take whatever action it believed appropriate to address the firefighter’s alleged disability, subject to the firefighter’s rights to challenge that action under the collective bargaining agreement.

CLARK COUNTY, DEC. NO. 30361-B (WERC, 11/03)

The Commission held that the County had terminated a probationary employee on the last day of her probation out of hostility to her exercise of protected concerted activity in vehemently (but not violently or profanely) challenging, together with at least one other co-worker, both the employer’s and the union’s view of the salary requirements of the new collective bargaining agreement. The Commission held that hostility toward the employee’s demeanor or manner was sufficient to amount to hostility to the protest itself, as long as the demeanor or manner did not exceed lawful parameters. The Commission also held that the employee’s disagreement with the union’s view of the contract did not reach the level of an attempt to bargain individually and therefore remained within the law’s protection. The Commission also clarified that cases centering upon retaliation against protected concerted activity should be analyzed under the four-element framework of a Sec. (3)(a)3 analysis, rather than the traditional Sec. (3)(a) 1 interference analysis. Addressing certain remedy issues for the first time, the Commission rejected the County’s attempt to limit its back pay by presenting after-acquired evidence of the employee’s poor job performance, on the ground that such an exercise would be too speculative and that the Commission’s traditional remedies were already limited in comparison with those available in other forums. Finally, the Commission rejected the employee’s request for front pay, on the ground that the record evinced insufficient evidence of pronounced hostility between the parties so as to make reinstatement infeasible, and also rejected the employee’s request for attorney’s fees on the ground that the case did not present exceptional circumstances to warrant such an exceptional remedy.


The Commission dismissed a complaint brought by a pro se individual for lack of timely prosecution. The Commission noted that the hearing examiner had given the complainant several opportunities to clarify his complaint and to respond to motions to dismiss for abandonment, but that the Complainant had not responded to those opportunities in a timely manner. While the Commission also faulted the examiner for delaying his responses to the Respondents’ motions, the Commission held that the Respondents themselves had persistently and timely asserted their right to a timely hearing and were therefore entitled to a dismissal.


In another case involving a pro se complainant, the Commission dismissed her complaint on the ground that she had not alleged any conduct on the part of the Respondents within the one-year limitations period that could be considered actionable. Instead the Commission found that the Respondent employer’s action in proffering the complainant an individual contract for the upcoming year that continued her leave of absence status did no more than maintain the status quo. Since it did not alter her status in any way from what it had been for several years, the offer of the individual contract was neither a "continuing violation" nor a legally cognizable incident in itself.CITY OF FENNIMORE, DEC. NO. 30454-B (WERC, 9/03)

Where a party’s final offer as submitted to the interest arbitrator contained a clerical error such that the offer did not conform to the party’s intent, the Commission has authority to permit the party to correct that error before the arbitrator has issued his award. The statutory prohibition against a party "modifying" a final offer following close of the investigation does not apply to modifications that conform to the intent of a party. In this case, the evidence demonstrated that the final offer contained a typographical error and did not conform to the party’s intent. Hence the final offer was corrected and the parties were given an opportunity to respond to the correction through additional proceedings before the arbitrator, if necessary.


Commission affirms examiner’s refusal to postpone hearing and dismissal of complaint where Examiner had given Complainant two weeks written notice that complaint would be dismissed if evidence was not presented at scheduled hearing by either Complainant or his representative. Commission notes that after listening to Complainant’s opening statement, examiner could have advised Complainant that he could testify on his own behalf but Commission concludes that examiner’s failure to do so does not warrant setting aside complaint dismissal where, as here, Complainant does not assert on review that he believed he had presented evidence through his opening statement.


Commission concludes that Sec. 111.70(4)(cm) 6. e., Stats. mandates that interest arbitration proceedings not be interrupted by the pendency of a prohibited practice complaint. Commission notes that the breadth of the WERC’s remedial authority in complaint proceedings is sufficient to guarantee that a party will not be ultimately advantaged by illegal conduct.


Commission denies request that the investigation be reopened now that the parties know the Commission’s ruling in Dec. No. 30562-A. Commission concludes that it does not have a persuasive basis for overturning investigator’s judgment that despite the potential impact of the outcome of the complaint litigation on the parties’ positions at the bargaining table, he had no reasonable basis for concluding that further mediation would produce a voluntary settlement. Commission notes that an investigator must consider both the potential impact of future events and the statutory interest in access to a "speedy" dispute resolution process.

CITY OF KENOSHA, DEC. NO. 30629-A (WERC, 6/03)

Commission rejects alleged non-compliance with a settlement agreement as a basis for setting aside Order Dismissing Complaint that was based another portion of the settlement agreement.

III. Pending Issues

A. Act 11/Partial Increments under QEO (Maple Dale et al)

B. Declaratory Ruling: Is a health insurance provision that confines benefits to heterosexual "spouses" a mandatory subject of bargaining? (Rock County)

C. Can a substantive arbitrability issue be successfully raised during the remedial phase of an arbitration proceeding.(Milwaukee Schools)

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