Outline of Recent WERC Developments -- April 2, 2004
WERC DECISION UPDATE
Presented at WERC Professional Staff Meeting
by Peter G. Davis, WERC General Counsel and Judy Neumann, WERC Chairperson
April 2, 2004
OZAUKEE COUNTY, DEC. NO. 30551-B (WERC, 2/04)
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 filed a complaint as the unilateral change and also objected to a finding
of impasse as long as the County's unilateral changes were in place. Given the
statutory provision specifying that interest arbitration shall not be
interrupted by complaint proceedings, the Commission 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 rejected the County's Green County based claim that unilateral
implementation was not illegal because of Union conduct that had allegedly
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 the
County's conduct.
As to remedy, the Commission largely affirmed the examiner's order regarding
make-whole relief and ordered the County to make the employees whole for all
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 reinstitute the same health insurance changes.
BERLIN SCHOOL DISTRICT, DEC. NO. 30791 (WERC 2/04)
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 administrative rules regarding filing objections to proposals
in final offers should be interpreted so 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. The Commission concluded that the
objection triggering the 10-day period can only be filed at the express
invitation of the Commission's investigator. In this case, the employer had
stated an objection in an e-mail. The investigator had not established a
deadline for receipt of an objection. 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.
CITY OF MEDFORD AND IBEW LOCAL 953, DEC. NO. 30537-B (WERC, 2/04)
The Commission partially overturned an examiner's dismissal of a complaint 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 before 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's 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 Commission concluded the Complainant was constructively an
employee for purposes of raising these claims, despite her termination, because
she could argue that the City's breach of the agreement, by which she had been
terminated, would invalidate her termination.
VILLAGE OF STURTEVANT, DEC. NO. 30378-B (WERC, 11/03)
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, ³You'd better think about your
position here before you file this.² 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 Villages 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 file
a prohibited practice complaint against the Village, the Director terminated
the firefighter's employment. The Commission held that the termination was
unlawful retaliation under Sec. 111.70 (3)(a)3. As to remedy, the Commission
refused to accept the Village's claim that reinstatement was inappropriate
because of 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 employees' disagreement with the Union's view of the contract did not
reach the level of an attempt to bargain individually with the County 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 traditional
four-element framework of a Sec. 111.70 (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 that
might make reinstatement not feasible, 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.
BLACKHAWK TECHNICAL COLLEGE, DEC. NO. 30023-D (WERC,10/03)
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. The Commission faulted the
examiner for delaying his responses to the Respondents' motions and held that
because the Respondents themselves had persistently and timely asserted their
right to a timely hearing, they were therefore entitled to dismissal of the
complaint.
EAU CLAIRE SCHOOLS, DEC. NO. 30019-C (WERC, 10/03)
In another case involving a pro se complainant, the Commission dismissed the
complaint on the ground that Complainant had not alleged any conduct on the
part of the Respondents within the one-year limitations period that could be
considered actionable. While Respondent employer had offered the Complainant an
individual contract within the one year period, the Commission concluded that
because the offer and acceptance did it not alter Complainants 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.
WAUPACA COUNTY, DEC. NO. 30733 (WERC, 11/03)
After considering the contractual recognition clause, other contract
provisions, and the parties' practice under the contract, Commission resolves a
decade old dispute by concluding that temporary and seasonal employees are
included in the bargaining unit and thus that the Union is entitled to bargain
over the wages, hours and conditions of employment of such employees in a
successor agreement.
MARKESAN SCHOOL DISTRICT, DEC. NO. 30723 (WERC, 10/03)
Union files a declaratory ruling petition alleging a zipper clause is at
least in part a permissive subject of bargaining. District moves to dismiss
arguing that there is no duty to bargain dispute because the zipper clause
³concerns economic issues² and thus became part of a contract created by Sec.
111.70(4)(cm) 5s, Stats. Commission denied motion to dismiss holding that the
effect of Sec. 111.70(4)(cm) 5s, Stats. is limited to economic issues
specifically listed in Sec. 111.70(1)(dm), Stats.
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 the offer 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.
PENDING ISSUES
A. Union access to employer
e-mail (UWHC)
B. Act 11/Partial Increments
under QEO (Maple Dale et al) -Oral argument April 21
C. Declaratory Ruling: Is a
health insurance provision that confines benefits to heterosexual spouses a
mandatory subject of bargaining? (Rock County)
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 22 APR 2004. Comments, questions and suggestions