Outline of Recent WERC Developments -- February 2001

Presentation to

WISCONSIN BAR LABOR LAW SECTION

February 15, 2001-Milwaukee

February 16, 2001-Madison

WERC UPDATE

Peter G. Davis *

General Counsel

Wisconsin Employment Relations Commission

* The speaker’s remarks do not necessarily represent the views of the Wisconsin Employment Relations Commission.

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

Or www.wisconsin.gov.

2. EAU CLAIRE OFFICE

          -Steve Bohrer and John Emery

3. WAUSAU OFFICE

          -Laura Millot and Steve Morrison

4. RETIREMENTS

-Doug Knudson

-Lee Crowley

-Assistant Attorney General John Niemisto

5. TIMELINESS OF DECISIONS

-Personnel Management

-Drop in Caseload

6. ADMINISTRATIVE RULES

-Emergency QEO Rules Adopted 1/12/2001

-Amend existing administrative rules to: (1) conform QEO calculations and forms for the 2001-2003 teacher contracts to statutory change dropping lane costs from the QEO calculation; and

(2) reflect the ruling of the Court of Appeals in RACINE EDUCATION ASS’N V. WERC, 238 WIS. 2D 33 (2000) that a QEO cannot exceed 3.8%.

-Overhaul of All Existing WERC Administrative Rules Begun

7. ISSUES

-The decision to install and use hidden video cameras on a loading dock and in a break room to investigate allegations of employee misconduct is a permissive subject of bargaining.

RACINE SCHOOLS, DEC. NO. 29846-B (WERC, 2/2001)

-In proceeding seeking to vacate interest arbitration award because the arbitrator allegedly acted outside the scope of his authority, the Commission applies a de novo standard of review citing LACROSSE PROFESSIONAL POLICE V. CITY OF LACROSSE, 212 WIS. 2D 90 (CT. APP. 1997) and concludes that the award should be modified but not vacated.

WAUKESHA COUNTY, DEC. NO. 29929-A (WERC, 11/2000); appeal pending.

-Court of Appeals affirms Commission majority view that the "maintain fringe benefits" portion of a statutory QEO only includes mandatory subjects of bargaining and that preparation time continues to be a permissive subject of bargaining.

DODGELAND EDUCATION ASSOCIATION V. WERC, (CT. APP. DIST. IV 11/2000) No. 00-0277-Publication recommended, Supreme Ct petition for review pending.

-Commission reaffirms the distinction between (1) the statutory right of employees covered by MERA or SELRA to present grievances to the employer "in person or through representatives of their own choosing" (so long as the union is given the opportunity to be present and any settlement of employee concerns is consistent with the union/employer contract) and (2) the right of a union and employer to contractually define an employee’s contractual right, if any, to use the contractual grievance procedure to independently process/arbitrate grievances.

UNIVERSITY OF WISCONSIN HOSPITAL AND CLINICS BOARD, DEC. NO. 29784-D (WERC, 11/2000)

-A grievance settlement agreement that includes a waiver of an individual employee’s federal statutory claims is not enforceable as a collective bargaining agreement.

THOMSEN V. WERC, 234 WIS.2D 494 (CT.APP. 2000)

-Balancing the employees’ interests (fringe benefit) and the employer’s interests (allocation of the work day, control of facilities, public trust, health and safety), the Commission concludes that the employer has a duty to bargain over the right of firefighters to engage in personal leisure activities using employer utilities during the non-duty portion of their 24 hour work day so long as the quality of emergency services is not compromised through delay or otherwise and so long as firefighter activities is regulated by a reasonableness standard.

CITY OF OSHKOSH, DEC. NO. 29971 (WERC, 10/2000)

Does it violate MERA to ratify two separate but integrated contracts with a single ratification vote?

No. NEW BERLIN SCHOOL DISTRICT, DEC. NO. 29665 (WERC, 8/99). Yes. Waukesha County Judge Foster, Case No. 99 CV 1814 (4/2000). Appeal pending

An employee’s ability to access all of the employer’s computer files is not in and of itself sufficient to make the employee an confidential employee.

MINERAL POINT SCHOOLS, DEC. NO. 22284-C (WERC, 9/2000) appeal pending.

Under SELRA (as under MERA), the employer cannot treat the majority union and minority union differently except as to matters necessary for the majority union to meet its obligations as the exclusive collective bargaining representative.

STATE OF WISCONSIN, DEC. NOS. 29448-C, 29495-C, 29496-C, 29497-C (WERC, 8/2000) appeal pending.

- A union’s refusal to bargain mid-term does not create an impasse but does constitute illegal conduct which allows the employer to unilaterally implement.

RACINE SCHOOLS, DEC. NO. 29659-B (WERC, 4/2000). Hempe concurs and dissents finding impasse allowed implementation. Aff’d CirCt Racine, Case No. 00 CV 1060 (12/2000)       

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

MANITOWOC SCHOOLS, DEC. NO. 29771-B (WERC, 7/2000)-Meier dissents.

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

RIB LAKE SCHOOLS, DEC. NO. 29625-B (WERC, 7/2000)-Meier dissents.

-How to calculate a QEO in the context of declining WRS rates?

ELK MOUND SCHOOLS-pending motion to review implementation.

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_february_2001.htm}. Last modified on 02 FEB 2001. Comments, questions and suggestions