Outline of Recent WERC Developments

 January 20, 2006


Presented to Wisconsin Public Employer

Labor Relations Association

 

By  Peter G. Davis,

WERC General Counsel**

 

I.                   Agency Update

 

 A. Commission Composition

 

Chairperson Judy Neumann –confirmed for a term expiring March 2007.

Commissioner Paul Gordon –confirmed for a term expiring March 2009.

Commissioner Sue Bauman – term expired March 2005.

 

B. Activities

 

Hiring Process Completed

Future Retirements

Future of LMC

 

 C. Status of Comprehensive Administrative Rule Revisions

 

Close to finish line.

 

 D. Web Site

 

http://werc.wi.gov/index.htm.

 

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

.

II.                Case Law Update

 

MANITOWOC COUNTY, DEC.NO. 31547 (WERC, 12/05)

 

Employee is a supervisor because he directs the work of 13-23 employees, plays a significant role in the hiring process, doesn’t perform the same work as the employees he supervises, and is compensated in part for his responsibility over the employees.

 

STATE OF WISCONSIN, DEC. NO. 31384-B (WERC, 11/05)

 

WERC holds complaint alleging discrimination and interference in abeyance pending outcome of ongoing grievance arbitration which WERC concludes may resolve the dispute in a manner consistent with WERC law. After receipt of arbitrator’s award, either party can ask WERC to resume complaint proceeding if complaint matters are not resolved by the award or are resolved in a manner inconsistent with WERC law.

 

CITY OF MILWAUKEE, DEC. NO. 31221-B (WERC, 10/05) APPEAL PENDING

 

 WERC concludes that employer did not have an obligation to bargain during term of contract over parking availability because that issue is already addresses by the contract.

 

NORTHERN OZAUKEE SCHOOL DISTRICT, DEC. NO. 14211-C (WERC, 9/05)

 

1975 agreement to limit unit to employees working 19 hours or more prevents union from including employees working fewer than 19 hours in the unit by way of unit clarification.

 

-Even though the part-time employees/positions in question did not exist in 1975, there were regular part-time employees in 1975 working fewer than 19 hours and thus exception #1 to the “deal is a deal” rule (i.e. the positions did not exist at the time the deal was made) is inapplicable.

 

-Even though the part-time employees/positions in question are performing work

previously performed by full-time unit employees who retired or quit, exception #3 to the “deal is a deal” rule (i.e. material change in circumstances) is inapplicable because an hours based exception has the inherent potential for erosion of bargaining unit work and no evidence of bad faith by employer.

 

-Given WERC’s past tolerance of units with such hours limitations, WERC will not now conclude that such existing units are inappropriate in this context. However, WERC indicates that in future it will not look kindly on such proposed units given the presumptive community of interest among all regular part-time employees and the statutory anti-fragmentation policy.

 

-Union can seek to represent these part-time employees as part of a residual non-professional unit or as part of a new all regular full-time and regular part-time unit.

 

MENOMONIE SCHOOL DISTRICT, DEC. NO. 14738-D (WERC, 9/05)

 

Incumbent in newly created position that directs the work of, evaluates, and authorized overtime for one employee is not a supervisor where she spends most of her time performing work similar to that of the subordinate and her authority to effectively recommend discipline/hire is as part of consensus decision-making model.

 

MILWAUKEE COUNTY, DEC. NO. 30848-B (WERC, 9/05)

 

No breach of the duty of fair representation because Union has wide discretion when making strategic choices as to how to address issue with employer (i.e. grievance versus other litigation).

 

No breach of the duty of fair representation because no evidence that Union agreed with the employer’s interpretation of contract language out of hostility toward grievant or for any bad faith motive.

 

VILLAGE OF WEST SALEM, DEC. NO. 31436 (WERC, 9/05)

 

Union’s failure to provide contractual notice of reopening did not automatically renew contract where term of the agreement was in dispute at time of reopening date.

 

MENOMINEE COUNTY, DEC. NO. 31421 (WERC, 8/05)

 

Unless tentative agreement has been ratified by both sides, no contract bar as to election petition.

 

CITY OF GREEN BAY, DEC. NO. 31417 (WERC, 8/05)

 

Amount of time spent filling in for supervisors plays key role in determination that disputed employees are supervisors.

 

PORTAGE SCHOOLS, DEC. NO. 31391 (WERC, 7/05)

 

WERC discards the “modified Wauwatosa policy” regarding timeliness of future election petitions.

 

MIDDLETON FIRE PROTECTION DIST. DEC. NO. 31247-A (WERC, 6/05)

 

Parties to election must honor their agreement as to who is eligible to vote.

 

CITY OF PRINCETON, DEC. NO. 31041-B (WERC, 6/05)

 

City violated duty to bargain obligation to maintain status quo during pendency of interest arbitration proceeding by implementing tentatively agreed upon insurance benefit changes over the Union’s objection to meet deadline imposed by insurance carrier.

 

Commission holds:

 

(1)   Two day duration of change (i.e award was issued two days thereafter) was not de minimus.

(2)   City did not establish that Union purposefully delayed completion of interest arbitration proceeding.

(3)   City did not establish necessity for change nor did Union establish need for recission of benefit changes until next annual insurance contract renewal because City could have signed contract with new carrier and, at least in this instance, held employees  harmless as to benefit changes. Commission emphasizes that where identity of carrier or plan administrator changes (as opposed to same carrier but different benefits as here) employer may not be able to hold employees harmless.

 

CESA #3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, APPEAL PENDING

 

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

 

CITY OF WATERTOWN, DEC. NO. 31268 (WERC, 3/05)

 

Commission rejects City anti-fragmentation argument and finds departmental unit to be an appropriate unit. 

 

EDGERTON FIRE PROTECTION DISTRICT, DEC. NO. 30686-B (WERC, 2/05) APPEAL PENDING

 

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.

 

CITY OF MILWAUKEE, DEC. NO. 31251 (WERC, 2/05)

 

Agreement to extend contract following its expiration does not bar election petition.

 

WAUKESHA COUNTY, DEC. NO. 30799-B (WERC, 2/05)

 

Circumstances surrounding layoff of active union president “arouse suspicion” but do not establish that employer acted out of illegal animus.

 

STATE OF WISCONSIN, DEC. NO. 30534-B (WERC, 2/05)

 

Employee seeks job from employer. Employer makes job offer to employee. Employee contacts union to see if job offered is correctly classified. Union persuades employer that  job is not correctly classified but must be posted and interviews conducted before job can be filled. Employer decides not to fill job because it has other options which will not delay performance of the work in question. Even though there is  nexus between the employee’s union activity and the withdrawal of the job offer, Commission concludes Employer did not illegally “chill” union activity. Commission reasons that because  employer could legally have not offered job in first instance had it known about the contractual requirements, it does not engage in illegal activity when it acts based on those same contractual requirements after the offer was made. Commission acknowledges the potential for such employer conduct to “chill” union activity but reiterates its holding in CLARK COUNTY, DEC. NO. 30361-B(WERC, 11/03) that where employer is acting for legitimate reasons, the “understandable but mistaken” impressions as to why the employer acted do not render the employer’s conduct unlawful.

 

DUNN COUNTY, DEC. NO. 31084 (WERC, 9/04), AFF’D CIRCT DUNN 6/05 CASE 04-CV-241, APPEAL PENDING

 

Because contractual provisions can be interpreted and applied in a manner that does not intrude upon the Sheriff’s constitutional prerogatives, the provisions are not prohibited subjects of bargaining.

   

Rock County, Dec. No. 30805-A (WERC, 9/04)

 

Proposal that provides insurance and leave benefits to spouses but not to same-sex domestic partners is not a prohibited subject of bargaining. WERC rejects contentions that union would breach its duty of fair representation by agreeing to such a provision or that employer or State of Wisconsin would violate Due Process and Equal Protection clauses of U.S Constitution by including such a proposal in a contract though collective bargaining or interest arbitration.

 

III. PENDING ISSUES

 

Joint Employer status-CITY OF MILWAUKEE, CASE 100

 

Given the language of Sec. 111.70(4)(d) 1, Stats., does employer commit a prohibited practice when it does not meet with an individual employee who wishes to present a  grievance directly to employer through a representative other than the employee’s union representative. MILWAUKEE SCHOOLS, CASE 413

 

Extent of employee (teachers) right to wear union buttons/place union signs in workplace. MILWAUKEE SCHOOLS, CASE 433

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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_january_2006.htm . Last modified on 20 JAN 2006. Comments, questions and suggestions