PRESENTATION OF PETER DAVIS

GENERAL COUNSEL

WISCONSIN EMPLOYMENT RELATIONS COMMISSION*

MARCH 10, 2000 IRRA MEETING-MILWAUKEE

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

1. WEB SITE-http://werc.wi.gov/index.htm.

2. EAU CLAIRE OFFICE

3. PLANS FOR WAUSAU OFFICE

4. ARBITRATOR TRAINING-Sec. 111.71(5), Stats.

5. TIMELINESS OF DECISIONS

Drop in Caseload

Personnel Management

Standards for Timeliness

6. ISSUES

**When positions are added to a bargaining unit during the term of a contract, does the existing contract automatically apply to the position?

**If not, is interest arbitration available to resolve any impasse in collective bargaining?

GREEN BAY SCHOOLS, DEC. NO. 29827 (WERC, 2/2000) petition for rehearing pending.

Existing contract automatically applies if the parties’ contract already establishes the position’s wages, hours and conditions of employment. No bargaining and no interest arbitration.

VERNON COUNTY, DEC. NO. 13805-I (WERC, 2/2000)

If existing contract does not already establish the position’s wages, hours and conditions of employment, then the

parties must bargain and interest arbitration is available to resolve an impasse.

**Is post decision conduct relevant when determining the employer acted adversely toward an employe at least in part because of hostility toward the employe’s exercise of protected rights?

Yes. NORTHEAST WISCONSIN TECHNICAL COLLEGE. DEC. NO. 28909-D (WERC, 3/99) affirmed Brown County Cir. Ct. 99 CV 517 (1/2000); appeal period not expired.

If employer action is based in part on illegal hostility but also on legitimate considerations (i.e. employe misconduct, etc), a violation of law will be found but the Commission has discretion to tailor the remedy to reflect the mixed motives.

STATE V. WERC, 122 WIS. 2D 132 (1985).

**What factors will help determine what is bargaining unit work?

Can employees be compelled to perform the work?

Do bargaining unit members perform a majority of the work?

Does the work involve employees in making managerial/policy decisions?

WAUKESHA COUNTY TECHNICAL COLLEGE, DEC. NO. 28952 (WERC, 12/96)

**Can a union and employer settle and ratify two 2-year contracts at the same time? Can the ratification of each contract be contingent on ratification of both contracts?

Yes. Yes. NEW BERLIN SCHOOL DISTRICT, DEC. NO. 29665 (WERC, 8/99) petition for review pending Waukesha Co. Cir. Ct. 99 CV 1814

**Does the duty to provide information to the union during bargaining extend to information the employer has not relied on when creating its own bargaining proposals?

Yes. TREMPEALEAU COUNTY, DEC. NO. 29598-B

(WERC, 1/2000)

**Where the parties agree to exclude an employee from a bargaining unit because they agree that employee is not a "municipal employee" (i.e is a supervisor, a confidential, managerial or executive employee), does that agreement bar a subsequent unit clarification petition seeking to include the employee in the unit?

**Where the parties agree to include an employee in a bargaining unit because they agree that employee is a "municipal employee" (i.e. is not a supervisor, a confidential, managerial or executive employee), does that agreement bar a subsequent unit clarification petition seeking to exclude the employee from the unit as a supervisor, etc.?

No. WISCONSIN INDIANHEAD TECHNICAL COLLEGE, DEC. NO. 11380-C (WERC, 2/99).

**Are attorneys’ fees and costs ever available to respondents in WERC complaint cases?

No. WSEU, DEC. NO. 29177-C (WERC, 5/99) Hempe dissents.

**Do the statutory rules of evidence apply in WERC complaint cases?

Yes. See Sec. 111.07 (3), Stats. BROWN COUNTY, DEC. NO. 29094-B (WERC, 11/99) appeal pending Brown County Cir. Ct. 99 CV 1671

**Where the alleged employee misconduct at issue in a WERC complaint case is criminal or involves moral turpitude, is it appropriate to apply a higher evidentiary standard than the statutory "clear and satisfactory" standard contained in Sec.111.07 (3), Stats.?

No. BROWN COUNTY, SUPRA. See also LAYTON SCHOOL OF ART & DESIGN V. WERC, 82 WIS. 2D 324 (1978)

**Does the allocation of the burden of proof in violation of contract complaint cases involving the discipline of employees allegedly for just cause (i.e. the complainant establishes a prima facie case and the burden then shifts to respondent to establish just cause) also apply to breach of the status quo/duty to bargain complaint cases involving discipline of an employee for just cause?

Not decided. RACINE SCHOOLS, DEC. NO. 29203-B (WERC, 10/98); BROWN COUNTY, SUPRA.

**In a violation of the status quo/duty to bargain complaint case, must the complainant exhaust any applicable grievance procedure in the expired contract?

Yes. RACINE SCHOOLS, SUPRA.

**Is dismissal of a WERC complaint appropriate if hearing becomes unmanageable due to a complainant’s disorderly, threatening or disrespectful conduct?

Yes. MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 29482-C (WERC, 6/99)

**Can a complaint be dismissed for lack of prosecution when the complainant fails to appear at hearing after unsuccessfully seeking postponement of a WERC complaint proceeding due to verifiable and likely successful effort to obtain legal counsel?

No. MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 29494-A (WERC, 3/99)

**Is the one-year statute of limitations applicable to filing a complaint with the WERC an affirmative defense which can be waived?

Yes. STATE OF WISCONSIN, DEC. NO. 28222-C (WERC, 7/98)

**In bargaining over a grievance settlement, is an employee (or any party) entitled to rely on the contingency of subsequent attorney review of the agreement where all parties are not advised of the contingency?

No. TOWN OF MADISON. DEC. NO. 28647-C (WERC, 5/98) affirmed Dane County Cir. Ct. 98 CV 1437 (5/99) appeal pending Court of Appeals Dist. IV.

**Can permissive subjects of bargaining be "fringe benefits" within the meaning of Sec. 111.70 (1)(nc) 1.a.,Stats. which thus must be maintained as part of a "qualified economic offer" under Sec. 111.70(1)(nc) Stats.?

No. DODGELAND SCHOOLS, DEC. NO. 29490 (WERC, 1/99) Hempe dissents. Affirmed Dodge County Cir. Ct. 99 CV 41 (12/99) appeal pending Court of Appeals Dist. IV.

**Can the provisions of a firefighter collective bargaining agreement be harmonized with Sec. 62.13, Stats. to the extent of allowing grievance arbitration over whether an employee was improperly disciplined/promoted/demoted?

Yes. CITY OF MADISON, DEC. NO. 28920-B (WERC, 4/98) affirmed Dane County Cir. Ct. 98 CV 1397 (1/99) appeal pending Court of Appeals Dist. IV.

** (a) Does a "qualified economic offer" exist when the school district makes a written offer to provide whatever salary and fringe benefits are mandated by Sec. 111.70(1)(nc),Stats.?

Yes. ERC 33.10 (3)(a) and RACINE SCHOOLS. DEC. NO. 29310 (WERC, 2/98) affirmed Racine County Cir. Ct. 98 CV 887 (1/99) appeal pending Court of Appeals Dist. II.

**(b) Can a "qualified economic offer" exceed the minimum salary component established by Sec. 111.70(1)(nc), Stats.?

Yes. RACINE SCHOOLS, SUPRA.

**`(c) Is a school district allowed to correct mistakes made when implementing a "qualified economic offer?"

Yes. RACINE SCHOOLS, SUPRA.

**(d) Does the law mandate use of a fixed complement of teachers when a "qualified economic offer" is calculated?

Yes. RACINE SCHOOLS, SUPRA.

NOTE THAT QEO ISSUES (a) AND (d) ABOVE ARE ALSO BEING LITIGATED IN A DECLARATORY JUDGMENT ACTION FILED BY WEAC IN DANE COUNTY CIR. CT. 98 CV 1473

**When challenging discipline, is a county deputy sheriff’s exclusive remedy circuit court review under Sec. 59.52(8) (c), Stats.?

No. EAU CLAIRE COUNTY V. GENERAL TEAMSTER UNION, 228 WIS. 2D 640 (CT OF APPEALS, 1999) appeal pending and briefed Wisconsin Supreme Court 98-3197