Outline of Recent Developments at the
WERC -- December, 2003


WERC UPDATE

Wisconsin IRRA

December 19, 2003

Peter Davis, WERC General Counsel ***

I. COMMISSION COMPOSITION

            Chair Judy Neumann- term expires 3/07-Appendix A

            Commissioner Paul Gordon-term expires 3/09-Appendix B

            Commissioner Sue Bauman-term expires 3/05-Appendix C

2. BUDGET TROUBLE

            More work

            Fewer resources

            Increase in fees to fund positions

3. ADMINISTRATIVE RULES OVERHAUL

            Almost completed

4. WEBSITE IMPROVEMENTS-http://badger.state.wi.us/agencies/werc/index.htm

            Appendix D

 

 

*** The speaker’s remarks do not necessarily reflect the views of the WERC.

 

5. CASE LAW UPDATE

VILLAGE OF STURTEVANT, DEC. NO. 30378-B (WERC, 11/03)

Village terminated employee at least in part because of hostility toward employee’s lawful concerted activity.

            De novo review

            Personal vs. concerted activity

            Frank response to grievance vs. threat

            After acquired evidence-now or later

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

County terminated employee at least in part because of hostility toward employee’s lawful concerted activity.

            De novo review

            Hostility toward manner of expression of lawful concerted activity

            Potential loss of protected activity status

            Clarification of interference analysis in retaliation context

            After acquired evidence-now or later

            Front pay/attorney fees

 BLACKHAWK TECHNICAL COLLEGE, DEC. NO. 30023-D (WERC,10/03)

Failure to respond to order to show cause warrants dismissal for lack of prosecution.

            Benefits of consistent advocacy

 EAU CLAIRE SCHOOLS, DEC. NO. 30019-C (WERC, 10/03)

Complaint dismissed as untimely filed.

            Continuing violation vs. no legally cognizable event.

UNITED AUTO WORKERS LOCAL 72, DEC. NO. 29431-C (WERC, 7/03)

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.

OZAUKEE COUNTY, DEC. NO. 30562-A (WERC, 7/03)

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.

OZAUKEE COUNTY, DEC. NO. 30562-B (WERC, 8/03)

Commission denies request that the investigation be reopened now that the parties know the Commission’s ruling in Dec. No. 30563-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.

VILLAGE OF REEDSVILLE, DEC. NO. 30313-B (WERC, 7/03)

Commission dismisses petition for election as untimely due to pending earlier filed interest arbitration petition. However, after parties reach agreement on an initial contract, unless the parties resolve the issue raised by the election petition to their mutual satisfaction, Commission will hear merits of claim that several "regular part-time employee" should have been allowed to vote and potentially be included in the unit.

WATERFORD SANITARY DISTRICT NO. 1, DEC. NO. 30214-E (WERC, 7/03)

Commission denied motion to dismiss unit clarification where filing party alleged relevant change in circumstances. However, because filing party had previously been ordered to provide a sworn affidavit in support of the petition, further processing of the petition was held in abeyance until such affidavit was filed.

BROWN COUNTY, DEC. NO. 11983-F (WERC, 6/03)

Commission rejects county’s motion to dismiss a unit clarification petition involving nine judicial assistants. County relied on Barland (SJC) case, in which the court limited the extent to which a collective bargaining agreement could require a judge to accept a particular individual as a judicial assistant. Commission holds that the Barland decision did not compel the conclusion that judicial assistants are per se "confidential employees" within the meaning of MERA.

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.

MILWAUKEE SCHOOLS, DEC. NO. 30201-C (WERC, 10/02)

Where the Court elected to honor the Commission’s jurisdiction under Sec. 111.70(3)(a) 5, Stats. rather than proceed to consider the merits of the employer’s Chapter 788 motion to vacate an award, the pending Chapter 788 motion does not insulate the employer from liability under Sec. 111.70(3)(a) 5, Stats. for refusing to comply with the award.

VILLAGE OF WILLIAMS BAY, DEC. NO. 30385-A (WERC, 9/02)

A contractual interest arbitration proposal is a permissive subject of bargaining.

CITY OF WAUSAU, DEC. NO. 30272-B (WERC, 10/02)

Union breached its duty of fair representation under Mahnke v. WERC, 66 Wis.2d 24 (1975) by failing to assess the likelihood of success in arbitration when settling a grievance that altered the seniority date of an employee.

STATE OF WISCONSIN (PICHELMANN), DEC. NO. 30124-D (WERC, 1/03)

Statutory right of employee to present grievances to the employer is distinct from any contractual employee right to file grievances.

No right to union representation in employer/employee meeting held to advise employee of discipline the employer has decided to impose.

Delay caused by employer/union agreement to extend time periods for processing contractual grievances does not have reasonable tendency to interfere with employee’s statutory rights even though such delay may discourage employees from filing grievances.

Employer answer requesting attorneys fees and costs does not have a reasonable tendency to interfere with employee’s right to file an unfair labor practice complaint.

STATE OF WISCONSIN (PESHUT), DEC. NO. 30125-F (WERC, 1/03)

Union business agent’s raising concerns about employee’s conduct as a union steward did not have a reasonable tendency to interfere with employee’s exercise of statutory rights. Even if such reasonable tendency was present, union’s valid business need to police the conduct of its stewards would warrant a finding of no interference.

CITY OF EAU CLAIRE, DEC. NO. 29346-C (WERC, 12/02)

Rejection of employer argument that there is a distinction between that status quo that must be maintained during a contract hiatus and the status quo form which the parties bargain a successor agreement.

Specific 1990 grievance settlement agreement defined status quo rather than general provisions of the expired 1995-1997 contract.

Employer’s interest in saving money does not establish "necessity" for modifying the status quo.

CITY OF MADISON, DEC. NO. 30288-B (1/03)

Discussion of the scope of phrase "employee’s legal rights" in the context of Sec. 111.70(3)(b) 1, Stats. that provides it is a prohibited practice for a union "To coerce or intimidate a municipal employee in the enjoyment of the employee’s legal rights, including those guaranteed in sub. (2)." Those are rights that: (1) involve employer/employee relationship; or (2) involve a MERA right; or (3) coercion as to non-MERA right is motivated by the employee’s exercise of a MERA right.

Employee’s MERA right to "assist" a labor organization does not include right to be steward.

Alleged union violation of its constitution/bylaws or of LMRDA does not fall within the scope of Sec. 111.70(3)(b)1, Stats. because alleged basis for such coercion did not involve employee’s exercise of a MERA right.

CITY OF RHINELANDER, DEC. NO. 24518-C (WERC, 11/02)

Not enough confidential work to justify exclusion of two Deputy Clerk/Treasurers from the unit. Employer’s desire for the two positions to be "interchangeable" not persuasive-no "undue disruption" to have all confidential work performed by one Deputy Clerk/Treasurer.

SHEBOYGAN SCHOOLS, DEC. NO. 10488-B (WERC, 8/02), 10488-D (WERC, 11/02

Two Payroll Clerks are not confidential employees. Extent of exposure to employer’s bargaining strategy not sufficient to warrant exclusion.

SAUK COUNTY, DEC. NO. 17343-C (WERC, 11/02)

Contractual recognition clause does not clearly exclude positions union seeks to include so Commission proceeds to the merits of the unit clarification petition.

TOWN OF CALEDONIA, DEC. NO. 30538 (WERC, 2/03)

Contractual recognition clause dictates unit placement of employee. Units in question are defined by organizational structure-not nature of work performed.

CAMPBELLSPORT SCHOOL DISTRICT, DEC. NO. 30585 (WERC, 3/03)

Commission concludes it has jurisdiction to determine whether Commission investigator correctly determined that a deadlock exists or continue to exist. Commission concludes that "deadlock" is the functional equivalent of "impasse." Commission concludes that investigator correctly determined that deadlock did not dissolve by virtue of District expression of ongoing interest in returning to bargaining table and reaching agreement. Thus, deadlock existed at the time the District implemented its QEO.

RIVER FALLS SCHOOL DISTRICT, DEC. NO. 30563 (WERC, 2/03)

Commission concludes that benefits in effect on the 90th day prior to contract expiration must be maintained as part of a QEO offer for successor contract even though the side letter creating the benefits explicitly states that the benefits expire with the existing contract. Commission notes that the union can waive its statutory right to have the side letter benefits continue as part of an implemented QEO.

ST CROIX COUNTY, DEC. NO. 12271-D (WERC, 4/03)

Commission dismisses petition for election as untimely due to pending earlier filed interest arbitration petition. Commission rejects argument that dates other than the dates of filing of the election and interest arbitration petitions are relevant to a timeliness determination.

NORTH CENTRAL HEALTH CARE FACILITY, DEC. NO. 29770-D (WERC, 3/03)

Commission concludes that pending complaint blocks further processing of election petition until there is a final disposition of the complaint through a Commission decision or Employer unilaterally remedies the alleged violation through posting of an appropriate notice. On reconsideration, Commission advises the parties that the Employer must take action sufficient to allow the Commission to issue a formal "consent decree."

APPENDIX D

Searching WERC PDF Archives With the State of Wisconsin Ultraseek Search Engine

Searchable PDF archives of WERC documents now available on the WERC website consist of the following file collections that will be updated on a monthly basis:

-A newly-expanded WERC PDF archive of WERC and related court decisions in labor relations cases, now including decisions issued after as well as before July of 1989; municipal sector since 1962, private and state sector since 1971.

-A newly created WERC PDF archive of grievance awards July 1989-date

-A recently created WERC PDF archive of 1978-99 Personnel Commission decisions and WERC personnel appeals decisions since July of 2003.

-The previously existing WERC PDF archive of interest awards 1971-date.

-A recently created WERC PDF archive of 1978-99 Personnel Commission decisions and WERC personnel appeals decisions since July of 2003.

To search the PDF archives on the WERC website using the Ultraseek search engine:

-open the WERC website which is located at http://werc.wi.gov

-left click on one of the Search links near the top of the opening page

-enter your search term or terms (DECISION NUMBERS IN LOWER CASE ONLY) in place of the words "Enter your search terms here"

- press the Search button at the bottom left corner of the search screen

-scroll down to view a Search Results list of links to the found documents.

-follow one of those links to view the document associated with it

-search for a particular word or phrase in the found document using the Acrobat Reader Find and Find Again buttons (binoculars and binoculars with arrow, NOT with your browser's Find command)

-use the Acrobat Reader buttons rather than browser commands to print (printer picture), save (diskette picture), copy a portion of the text for pasting into a Word document (T+square button and then highlight text to be copied e.g. using mouse, then right click on highlighted portion and choose copy).

-use your browser's Back button to return to the list of Search Results.

More detailed information, including sample searches, is available here. If you have questions feel free to contact Marshall Gratz.

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This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is http://badger.state.wi.us/agencies/werc/outline_of_recent_developments_december_2003.htm}. Last modified on 22 DEC 2003. Comments, questions and suggestions.