OUTLINE OF RECENT DEVELOPMENTS

December 8, 2006

presented at WERC Staff Meeting, Madison, Wisconsin


 

BY PETER G. Davis

       WERC General Counsel**

 

 

I.                  New WERC Administrative Rules

 

-Applicable to all matters filed on or after August 30, 2006.

 

-Fax and e-mail service and delivery

            -New Forms

-Timing of motions to make complaint more definite and certain

            -Revised service letter

-Complaint Conciliation

-Failure to Appear

-Answers to Complaint

            -Timing

            -Waiver of Affirmative Defenses

            -Revised service letter

-Timing of objections to final offer.

 

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

 

II.              Recent WERC Decisions

 

CITY OF STURGEON BAY, DEC. NO. 31880 (WERC, 10/06)

 

Statement by interest arbitrator that “ the arbitrator will effect simultaneous exchange and declare the hearing closed upon receipt of the briefs.” cannot reasonably be understood to also mean that the record cannot be reopened, upon motion, for receipt of relevant evidence not available at the time of the hearing. Thus, the interest arbitrator did not err by considering interest arbitration award issued by another arbitrator involving a different bargaining unit of employees of the same municipal employer which award was relevant evidence as it constituted “Changes in  . . circumstances during the pendency of the arbitration proceedings.” within the meaning of Sec. 111.70 (4)(cm) 7r., Stats.

 

SAUK COUNTY, DEC. NO. 27107-B (WERC, 10/06)

 

Employee who participated in hiring decisions, independently evaluated employees, issued recorded verbal reprimands, and directed the work of four employees on a daily basis is a supervisor.

 

STATE OF WISCONSIN, DEC. NO. 31271-B (WERC, 8/06)

 

Employer has no duty to bargain-related obligation to provide presumptively relevant names and addresses of current unit members to incumbent union where sole purpose for said information identified by incumbent was communicating with employees to persuade to vote for incumbent in future representation election (i.e. for a purpose found to be outside the incumbent’s current statutory duty as bargaining representative.

 

MILWAUKEE BOARD OF SCHOOL DIRECTORS, DEC. NO. 31732 (WERC, 8/06); APPEAL PENDING CIR CT MILW

 

Commission concludes that during bargaining over a successor agreement, teachers have right to wear bargaining-related buttons in classroom and Commission majority (Commissioner Gordon dissenting) concludes that teachers have right to place bargaining-related signs in classroom in same location as teachers are allowed to place personal pictures/posters.

 

BROWN COUNTY, DEC. NO. 31476-C (WERC, 6/06); AFF’D CIR CT BROWN 2006CV 1322 11/06. APPEAL PERIOD PENDING.

 

County discharge of care giver pursuant to Sec. 50.065 (5m), Stats is subject to de novo review under contractual/status quo just cause standard and County lacked just cause to discharge employee. Circuit Court agrees.

 

 

CITY OF EAU CLAIRE, DEC. NO. 29346-D (WERC, 6/06)

 

Commission departs from normal practice of ordering interest (at statutory rate of 12%) on back pay from date of violation because applicable rate of pay and/or number of hours of work could not determined until Commission issued decision.

 

RACINE COUNTY, DEC. NOS. 31377-C,31378-C (WERC, 6/06)

 

Commission exercises its remedial discretion and modifies Examiner order by eliminating employee obligation to repay monies saved by employees due to employer’s unlawful unilateral modification of status quo as to health insurance

premiums.

 

 

STATE OF WISCONSIN, DEC. NO. 31240-B (WERC, 5/06)

 

Applying doctrine of issue preclusion to question of whether the employer had failed to comply with an arbitration award by subsequent discipline of grievant for same conduct found improper by arbitrator, Commission concludes that no violation of law occurred because it could not be determined from the expedited/no rationale nature of the award what issue was decided.

 

SCHOOL DISTRICT OF NEW BERLIN, DEC. NO. 31243-B (WERC, 4/06)

 

Employer can be critical of Union representative but commits illegal interference and domination when Employer adds that relationship would improve if identity of union representative changed and offers to help employees seek such a change.

 

SUN PRAIRIE SCHOOLS, DEC. NO. 31190-B (WERC, 3/06), DEC. NO 31190-D (WERC, 8/06), APPEAL PENDING CIR CT DANE

 

Where long standing (20 year) past practice conflicts with clear contract language, employer can renounce practice (at least in presence of a zipper clause) and union has burden of acquiring contract language supporting continuation of the practice in the next contract. However, employer must maintain practice during any contract hiatus until new contract is reached.

 

 

 

III.             PENDING COURT CASES

 

 

 

MILWAUKEE SCHOOLS-SEE ABOVE

 

SUN PRAIRIE SCHOOLS-SEE ABOVE

 

BROWN COUNTY-SEE ABOVE

 

KRISKA V DOC, DEC. NO. 31796 (WERC, 9/06); APPEAL PENDING CIR CT MILW

 

Commission lacks jurisdiction over termination of a promotional probationary period after which the employee returned to permanent status in prior position

 

INDIANHEAD TECHNICAL COLLEGE, DEC. NO. 31747 (WERC, 7/06); APPEAL PENDING CIR CT WASHBURN

 

Certain individuals are not managerial employees.

 

 

MADISON SCHOOLS, DEC. NO. 31345-B (EMERY, 3/06) AFF’D BY OPERATION OF LAW, DEC. NO. 31345-C (WERC, 4/06); APPEAL PENDING CIR CT DANE.

 

Without regard to whether matter is mandatory or permissive subject of bargaining, employer violates Sec. 111.70 (3)(a) 4, Stats. if it bargains with individual employees instead of union.

 

 

BROWN COUNTY, DEC. NO.11983-J (WERC, 3/06); APPEAL PENDING CIR CT BROWN

 

Judicial Assistants are County employees, are not confidential employees and can be included in a collective bargaining unit without violating the judiciary’s constitutional authority (although certain contractual protections cannot be bargained on their behalf due to judges’ statutory authority to select own Assistant)

 

HARTFORD UNION HIGH SCHOOL, DEC. NO. 23116-C (WERC, 6/06);APPEAL PENDING CIR CT WASHINGTON.

 

Certain support staff individuals are not confidential employees.

 

                  

CESA #3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, AFFIRMED CT APP. DIST III 10/06 (UNPUBLISHED);PETITION FOR SUP CT REVIEW FILED.

 

Commission concludes that proposal which requires employer to provide “appropriate remedial assistance prior to instituting disciplinary procedures unless circumstances make such assistance impossible.” is a mandatory subject of bargaining primarily related to job security. Commission rejects argument that a prior decision of WERC and Wisconsin Supreme Court in Beloit Educ. Assoc. v. WERC, 73 Wis. 2d 43 (1976) warrants a contrary conclusion. Commission notes that the proposal does not dictate a specific type of assistance. Circuit Court reverses concluding WERC is attempting to reverse Supreme Court’s decision in Beloit. Court of Appeal affirms WERC in per curium decision on basis of deference/standard of review.

 

        BAYFIELD COUNTY, DEC. NO. 31291 (WERC, 3/05), REV’D CIRCT

          BAYFIELD, 05 CV 43 2/06; APPEAL PENDING CT APP

 

          Commission concludes that Confidential Secretary/Office Supervisor is not a

          Supervisor or a confidential employee. As to supervisory issue, Commission

          determines that only one employee is allegedly supervised, incumbent has no

          disciplinary authority (independent or effective recommendation), incumbent’s

role in hiring was significant but fell short of effective recommendation and incumbent spends little time supervising work. Circuit Court reverses as to supervisory issue concluding that incumbent has the effective authority to hire and the Commission undervalued the authority of the incumbent to effectively recommend the performance evaluations of the one employee.

 

 

EDGERTON FIRE PROTECTION DISTRICT, DEC. NO. 30686-B (WERC, 2/05) Aff’d circt rock  05-cv-348 2/06 Appeal  pending CT APP

 

Commission concludes employer terminated all three bargaining unit employees at least in part out of unlawful animus. Commission further concludes that employer decision to eliminate its full-time fire fighters while continuing to provide the same level of service through volunteers is a mandatory subject of bargaining. Circuit Court affirms based on deference/standard of review.

 

 

 

ST. CROIX COUNTY, DEC. NO. 8932-M (WERC, 1/05) REV’D CIRCT ST. CROIX O5-CV-348 3/06, APPEAL  PENDING CT APP

 

Commission concludes that neither the Recycling Technician nor the GIS Mapper is managerial employees. Commission determines that while both are skilled professionals making significant contributions to county programs, neither have the level of influence on policy needed to establish managerial status. Circuit Court reverses as to the Recycling Technician and determines that the incumbent has both sufficient policy role and sufficient budgetary/financial authority to establish managerial status.

 

 

 

IV.             PENDING ISSUES

 

Rights/obligations of employer under Sec. 111.70 (4)(d) 1, Stats. to meet with employees and “representative of  their own choosing.” MILWAUKEE SCHOOLS, Case 413

 

Joint Employer status. CITY OF MILWAUKEE, CASE 100

 

QEO implications if part of a fringe benefit (early retirement) is/maybe illegal. PORT EDWARDS SCHOOLS, CASE 14

 

Duty to bargain obligations of employer as to wage, hour, condition of employment impacts of change in a permissive subject of bargaining.  DODGELAND SCHOOLS, CASE 29

 

Scope of right of incumbent union to drop pending grievances after it loses representation election but before new union becomes the representative. STATE OF WISCONSIN, CASE 668

 

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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_november_2006.htm . Last modified on 16 MAR 2006. Comments, questions and suggestions