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Outline of Recent WERC Developments -- April 2, 2004


Presented at WERC Professional Staff Meeting

by Peter G. Davis, WERC General Counsel and Judy Neumann, WERC Chairperson

April 2, 2004


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.


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.


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.


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 attorneys 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. 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.

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.


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.


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.


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)
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